Woods v. Health Care Specialty Services

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL PHILLIP WOODS, Case No.: 22-cv-1055-MMA (AGS) CDCR #BG-8263, [12] ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT WITH vs. LEAVE TO AMEND PURSUANT TO [14] 28 U.S.C. §§ 1915 (e)(2)(B) & 1915A(b) [15] HEALTH CARE SPECIALTY 16 SERVICES, et al., 17 Defendants. [18] 19 On July 18, 2022, Plaintiff Michael Phillip Woods, a state prisoner incarcerated at 20 Centinela State Prison in San Diego, California, proceeding pro se, filed a civil rights 21 Complaint pursuant to 42 U.S.C. § 1983 . Doc. No. 4. Plaintiff claimed he received 22 inadequate medical care for a broken wrist. Id. at 3–4. 23 On September 9, 2022, the Court granted Plaintiff leave to proceed in forma 24 pauperis (“IFP”) and screened the Complaint pursuant to 28 U.S.C. §§ 1915 (e)(2) & 25 1915A(b), under which the Court must sua sponte dismiss a prisoner’s IFP complaint, or 26 any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages 27 from defendants who are immune. Doc. No. 8. The Court dismissed the Complaint with 28 leave to amend because it failed to identify a proper Defendant, as it named only 1 Centinela State Prison and Health Care Specialty Services as Defendants, and because it 2 did not plausibly allege that any prison official was aware of and deliberately disregarded 3 a substantial risk to Plaintiff’s health, or that the treatment he received was medically 4 unacceptable under the circumstances and chosen in conscious disregard of an excessive 5 risk to his health. Id. at 5–10. 6 Plaintiff has now filed a First Amended Complaint (“FAC”). Doc. No. 9. He 7 names 35 individual Centinela health care workers as Defendants, including eight 8 Doctors, twenty-five Nurses and two Occupational Therapists. Id. at 3 . Despite being 9 instructed in the Court’s prior dismissal Order that individual Defendants whose acts or 10 omissions are alleged to have caused a constitutional violation must be identified in the 11 FAC, the FAC contains the same brief factual allegations as the original Complaint which 12 fail to name any of the individual Defendants and lacks any indication of what any 13 individual Defendant did or failed to do. Rather, Plaintiff attaches as exhibits to the FAC 14 copies of his medical records, prison grievances and personal medical journal, which 15 include references to six of the 35 individual Defendants. Doc. No. 9-1; Doc. No. 9-2. 16 I. SCREENING PURSUANT TO 28 U.S.C. §§ 1915 (e)(2) & 1915A(b) 17 A. Standard of Review 18 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre19 Answer screening pursuant to 28 U.S.C. §§ 1915 (e)(2) & 1915A(b). Under these 20 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 21 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 22 who are immune. See Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 24 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the 25 targets of frivolous or malicious suits need not bear the expense of responding.” 26 Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 2 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 3 Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard applied in 4 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 5 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 6 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 7 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed 8 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 9 of action, supported by mere conclusory statements, do not suffice.” Id. “Determining 10 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 11 requires the reviewing court to draw on its judicial experience and common sense.” Id. 12 The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed 13 me accusation[s]” fall short of meeting this plausibility standard. Id. 14 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 15 acting under color of state law, violate federal constitutional or statutory rights.” 16 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 17 source of substantive rights, but merely provides a method for vindicating federal rights 18 elsewhere conferred.” Graham v. Connor, 490 U.S. 386 , 393–94 (1989) (internal 19 quotation marks omitted). 20 B. Allegations in the FAC 21 In count one of the FAC Plaintiff alleges that on or around December 6, 2019, he 22 fractured his right wrist and “requested to be seen and treated by ‘D-Yard Medical.’” 23 Doc. No. 9 at 4. He was seen and diagnosed with “right wrist tendonitis” and provided a 24 treatment plan of “home therapy, including moist heat, massage, [and] range of motion 25 stretching exercises,” and received a prescription for 600 mg Ibuprofen for 60 days. Id. 26 However, after several days the pain and swelling worsened under the treatment plan and 27 he requested to be seen again. Id. “I was told by the physician of D-Yard Medical that 28 the swelling will go down, it was just inflamed.” Id. 1 On January 15, 2020, Plaintiff was “transported to San Diego to see Dr. Forester,” 2 who is not a Defendant, and who told Plaintiff: “I have a right wrist lunate fracture and 3 that it needed to be put into a cast.” Id. Plaintiff claims: “‘D-Yard Medical’ did not take 4 the proper procedure or protocol before giving me a diagnosis of ‘right wrist tendonitis’ 5 which caused me to endure unnecessary pain and discomfort. See Exhibit A.” Id. As 6 detailed below, Exhibit A consists of copies of Plaintiff’s medical records and inmate 7 grievances regarding the incorrect diagnosis of wrist tendonitis. Doc. No. 9-1 at 1–13. 8 Plaintiff alleges in count two that on or around July 1, 2021, he “started having 9 problems with my right hand going numb causing me pain and discomfort. I requested 10 multiple visits to ‘D-Yard Medical’ for diagnosis and treatment, with negative results.” 11 Doc. No. 9 at 5. He states he is still suffering pain and discomfort and that “the pain got 12 so bad that [I] could barely hold a pen to write, brush my teeth, or complete tasks with 13 my right hand” and the pain “even wakes me up during sleeping.” Id. Plaintiff submitted 14 a Healthcare Grievance form 602 against “Defendant Health Care Specialty Services” in 15 order to obtain proper medical care, which was denied “with ‘no intervention.’” Id. He 16 states that he is “still enduring ongoing pain and discomfort from the lack of medical care 17 being given to me. See Exhibits B-E.” Id. As detailed below, Exhibits B-E consist of 18 medical records, grievances, and Plaintiff’s “Personal Medical Journal of Medical 19 Events.” Doc. No. 9-1 at 14–31; Doc. No. 9-2 at 1–12. 20 The FAC renames: “Health Care Specialty Services” and “Centinela State Prison” 21 as Defendants, and names as new Defendants Doctors Kyle Seeley, Samuel Ko, Chirag 22 Bhavsar, Ajmel Sangha, Dorothy Do-Williams, Rogelio Ortega, Sabeen Munib and 23 Harpreet Gill, Licensed Vocational Nurses Julio Coronado, Noel Luna, Maria Ramirez, 24 Christina Lancaster, Denise Vega, Charisma Johnson, Chrissy Camon, Cynthia Valdez, 25 Carmen Gomez, Cruz Garcia, Collette Harris and Michael Blade, Registered Nurses 26 George Estrada, Raul Beltran, Emil Duran, Alejandro Pineda, Theresia Torczon, Alex 27 Murillo, Ana Martinez, Janelle Sandoval, Preciado Gullermo, Alma Galvan, Rosemarie 28 Doherty, Monica Raggosa and Ricardo Rosas, and Occupational Therapists Erica Felix 1 and Michael Blade. Id. at 2. The FAC contains no allegations against any of these 2 individual Defendants. Rather it appears Plaintiff intends to rely on the exhibits attached 3 to the FAC to identify the individual Defendants’ involvement in his medical care, but 4 which include references to only six of the 35 individual Defendants. Doc. No. 9-1; Doc. 5 No. 9-2. He seeks compensatory and punitive damages. Doc. No. 9 at 8. 6 C. Analysis 7 Prisoner medical care may amount to cruel and unusual punishment in violation of 8 the Eighth Amendment when medical professionals are “deliberately indifferent” to an 9 inmate’s “serious” medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). 10 “Deliberate indifference ‘may appear when prison officials deny, delay or intentionally 11 interfere with medical treatment, or it may be shown by the way in which prison 12 physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 13 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 14 “[A] prison official violates the Eighth Amendment when two requirements are 15 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer 16 v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294 , 298 17 (1991)). Second, Plaintiff must allege the prison official he seeks to hold liable had a 18 “sufficiently culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate 19 health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03). “A difference of opinion 20 between a physician and the prisoner - or between medical professionals - concerning 21 what medical care is appropriate does not amount to deliberate indifference.” Colwell, [22] 763 F.3d at 1068 . Negligence or malpractice in diagnosing or treating a medical 23 condition does not violate the Eighth Amendment. Farmer, 511 U.S. at 835 ; Estelle, 429 24 U.S. at 106. A prison official must “know[] of and disregard[] an excessive risk to 25 inmate health or safety; the official must both be aware of facts from which the inference 26 could be drawn that a substantial risk of serious harm exists, and he must also draw the 27 inference.” Id. at 837. 28 With respect to the serious medical need prong of an Eighth Amendment claim, the 1 allegations in the FAC that the lack of adequate medical care has resulted in Plaintiff 2 experiencing ongoing pain and discomfort, as well as difficulty sleeping, holding a pen 3 and brushing his teeth, are sufficient to survive the “low threshold” of screening required 4 by 28 U.S.C. §§ 1915 (e)(2) & 1915A(b). Wilhelm, 680 F.3d at 1123 ; Iqbal, 556 U.S. at 5 678; Doty v. County of Lassen, 37 F.3d 540 , 546 n.3 (9th Cir. 1994) (“[I]ndicia of a 6 ‘serious’ medical need include (1) the existence of an injury that a reasonable doctor 7 would find important and worthy of comment or treatment, (2) the presence of a medical 8 condition that significantly affects an individual’s daily activities, and (3) the existence of 9 chronic or substantial pain.”). 10 However, the FAC fails to plausibly allege any Defendants was deliberately 11 indifferent to Plaintiff’s serious medical needs. As Plaintiff was informed in the Court’s 12 prior order of dismissal of his original Complaint, Centinela State Prison and Health Care 13 Specialty Services are not proper Defendants. “To establish § 1983 liability, a plaintiff 14 must show both (1) deprivation of a right secured by the Constitution and laws of the 15 United States, and (2) that the deprivation was committed by a person acting under color 16 of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 17 Centinela State Prison and Health Care Specialty Services are not “persons” within the 18 meaning of § 1983. See Allsion v. Cal. Adult Auth., 419 F.2d 822, 822-23 (9th Cir. 1969) 19 (concluding that state prison was not a “person” for purposes of § 1983); Walker v. Scott, 20 10cv5629-VAP (PJW), 2014 WL 346539 , at *5 (C.D. Cal. Jan. 23, 2014) (“Defendant 21 Prison Administrative Health Care is not a person and, therefore, is not amenable to suit 22 under 42 U.S.C. § 1983 .”) (citing Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007) 23 (noting that governmental entities are considered arms of the state and not “persons” 24 withing the meaning of 42 U.S.C. § 1983 )). 25 With respect to the remaining Defendants, 35 Doctors, Nurses, and Occupational 26 Therapists working at Centinela, Plaintiff has not alleged deliberate indifference. The 27 deliberate indifference prong of an Eighth Amendment violation “is satisfied by showing 28 (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and 1 (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2 2006). In count one of the FAC Plaintiff alleges his fractured wrist was misdiagnosed as 3 tendonitis on December 6, 2019, by “D-Yard Medical” at Centinela State Prison, that it 4 was not properly diagnosed as a broken wrist until January 15, 2020, by Dr. Forester, an 5 outside doctor who is not a Defendant, and that he suffered unnecessary pain and 6 discomfort during that six-week period as a result of the incorrect diagnosis. Doc. No. 9 7 at 4. 8 A prison official can be held liable only if he “knows of and disregards an 9 excessive risk to inmate health or safety; the official must both be aware of facts from 10 which the inference could be drawn that a substantial risk of serious harm exists, and he 11 must also draw the inference.” Id. at 837. In other words, the Eighth Amendment is 12 violated when a prison official, acting with deliberate indifference, exposed Plaintiff to a 13 sufficiently “substantial risk of serious harm” to his health. Id. at 843. Count one 14 contains an allegation of a misdiagnosis of Plaintiff’s wrist injury which does not rise to 15 the level of an Eighth Amendment violation. See Farmer, 511 U.S. at 835 16 (“[N]egligen(ce) in diagnosing or treating a medical condition” does not amount to 17 deliberate indifference) (quoting Estelle, 429 U.S. at 106 ) (holding that inadvertent 18 failure to provide medical care, mere negligence or medical malpractice and differences 19 of opinion over what medical treatment is proper, do not state an Eighth Amendment 20 claim). 21 Plaintiff alleges he complained of swelling and pain a few days after his December 22 6, 2019, diagnosis of tendonitis, and was sent to an outside doctor for examination on 23 January 15, 2020, but the FAC contains no allegations that any Defendant was aware 24 during that six-week period he needed further treatment or diagnosis, as opposed to at 25 most malpractice or negligence in failing to adequately diagnose his condition. “A 26 defendant must purposely ignore or fail to respond to a prisoner’s pain or possible 27 medical need in order for deliberate indifference to be established.” McGuckin v. Smith, [28] 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds by WMX Technologies, 1 Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Although “[p]rison officials are 2 deliberately indifferent to a prisoner’s serious medical needs when they deny, delay, or 3 intentionally interfere with medical treatment,” Hallett v. Morgan, 296 F.3d 732, 744 (9th 4 Cir. 2002), with respect to the six-week delay in properly diagnosing Plaintiff’s wrist 5 injury during which he alleges he suffered unnecessary pain, he can only establish 6 deliberate indifference from such a delay where there is a purposeful act or failure to act 7 by the prison official that results in harm to the plaintiff. Jett, 439 F.3d at 1096 ; Castro v. 8 County of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (“A prison official cannot be 9 found liable under the Cruel and Unusual Punishment Clause [of the Eighth Amendment] 10 . . . ‘unless the official knows of and disregards an excessive risk to inmate health or 11 safety; the official must both be aware of facts from which the inference could be drawn 12 that a substantial risk of serious harm exists, and he must also draw the inference.’”), 13 quoting Farmer, 511 U.S. at 837 . Without factual allegations that any Defendant actually 14 drew an inference that Plaintiff needed different medical attention during the six-week 15 delay and deliberately disregarded that need, count one does not state an Eighth 16 Amendment claim. 17 Plaintiff apparently seeks to satisfy that pleading requirement with respect to claim 18 one through Exhibit A to the FAC, which consists of: (1) medical records indicating that 19 Plaintiff had been administered 600 mg of Ibuprofen by Defendant Nurse Camou on 20 January 8, 2020, by order of Defendant Dr. Seeley, with the prescription continued for 60 21 days, and that on January 15, 2020, Defendant Dr. Seeley examined Plaintiff “for 22 evaluation of right wrist dysfunction with possible lunate fracture more than a month ago. 23 Patient was splinted today with recommendation to follow-up in 1 month time to 24 reevaluate the wrist.”; (2) an inmate grievance dated March 28, 2020, complaining that 25 Dr. Seeley “did not take the proper procedure or follow protocol” when he misdiagnosed 26 Plaintiff’s broken wrist as tendonitis, and which is marked as “assigned to” Defendant 27 Dr. Ko on April 8, 2020; and (3) an Institutional Level Response dated April 28, 2020, to 28 that grievance marked: “No intervention.” Doc. No. 9-1 at 1–13. Only those three 1 Defendants, Dr. Seeley, Dr. Ko and LVN Camou are mentioned in those documents. 2 Dr. Ko was assigned to review Plaintiff’s complaint about the treatment he received from 3 Dr. Seeley nearly four months after his wrist was properly treated, and LVN Camou 4 administered Ibuprofen on a single occasion as ordered by Dr. Seeley. 5 With respect to count one, the allegations contained in the body of the FAC and 6 Exhibit A as referenced in count one merely allege a six-week delay between 7 Dr. Seeley’s December 6, 2019, misdiagnosis of tendonitis and Plaintiff’s January 15, 8 2020 treatment at an outside hospital for a broken wrist, Dr. Ko’s assignment to 9 investigate that delay in treatment four months after it occurred with no allegations 10 regarding why Plaintiff contends Dr. Ko is liable, and the administration of a single dose 11 of Ibuprofen by LVN Camou again without any indication of why Camou is named as a 12 Defendant. As with the original Complaint, there are once again no factual allegations 13 which plausibly allege any Defendant actually drew an inference that a substantial risk to 14 Plaintiff’s health existed and deliberately disregarded that risk. Rather, the FAC merely 15 alleges a misdiagnosis of his wrist amounting at most to negligence or medical 16 malpractice and only against Defendant Dr. Seeley. Accordingly, claim one of the FAC, 17 alleging an Eighth Amendment violation arising from having a broken wrist 18 misdiagnosed as tendonitis with a resultant six-week delay in having it properly 19 diagnosed and treated, is dismissed sua sponte for failing to state a claim pursuant to 28 20 U.S.C. §§ 1915 (e)(2) & 1915A(b). Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 21 1121. 22 The FAC alleges in count two that on or about July 1, 2021, about one and one23 half years after surgery, Plaintiff began experiencing numbness, pain and discomfort, and 24 he “requested multiple visits to ‘D-Yard Medical’ for diagnosis and treatment, with 25 negative results.” Doc. No. 9 at 5. He states that his inmate healthcare 602 grievance 26 was denied marked “no intervention” and that he is “still enduring ongoing pain and 27 discomfort from the lack of medical care being given to me. See Exhibits B-E.” Id. 28 Deliberate indifference can be shown where the chosen course of medical 1 treatment was “medically unacceptable under the circumstances” and chosen “in 2 conscious disregard of an excessive risk to the prisoner’s health.” See Toguchi v. Chung, [3] 391 F.3d 1051, 1058 (9th Cir. 2004). A prison official can be found liable for an Eighth 4 Amendment violation where, knowing of a substantial risk to Plaintiff’s health in 5 declining to provide such treatment, deliberately disregarded that risk when choosing the 6 course of treatment which caused substantial harm. Wood v. Housewright, 900 F.2d 7 1332 , 1334–35 (9th Cir. 1990) Count two of the FAC fails to identify a prison official 8 who was aware of a substantial risk to Plaintiff but deliberately disregarded that risk. 9 Farmer, 511 U.S. at 837 . 10 Rather than identify in the FAC the individual Defendants who Plaintiff alleges 11 knew of a substantial risk to his health and disregarded the risk when choosing the course 12 of treatment he received, he attaches Exhibits B-E in support of this claim. Exhibit B 13 consists of: (1) Plaintiff’s May 5, 2022, inmate grievance complaining that he has been 14 having problems with his right hand going numb for several months and has “seen the 15 LVN, RN, and doctor for it [but] nothing is being done,” and that for the last 6-8 months 16 he has “seen the Doctor, Specialist, and physical therapist for my shoulder [but] again 17 nothing his being done.”; and (2) a July 11, 2022, Institutional Level Response marked: 18 “No intervention” which contains a detailed timeline of treatments from January 27, 19 2022, through June 24, 2022, and indicates that Plaintiff’s “medical condition will 20 continue to be monitored with care provided as determined medically or clinically 21 indicated by the primary care provider.” Doc. No. 9-1 at 15–19. There are no 22 Defendants named in those documents. Exhibit C consists of: (1) Plaintiff’s August 11, 23 2022, inmate grievance complaining that he requested medical treatment from Defendant 24 LVN Coronado for extreme pain and discomfort in his wrist and was told he had two 25 options, “to see Defendant Dr. Ko with whom I am not comfortable seeing or file a 26 medical 602,” which forced Plaintiff “to go ‘man down’ in order to received medical 27 attention or care,” and (2) the September 12, 2022, Institutional Level Response to that 28 grievance marked “No intervention” which contains a timeline of his treatment from 1 August 11-30, 2022. Id. at 21–25. Dr. Ko and LVN Coronado are the only Defendants 2 referenced in those documents. Exhibit D consists of Plaintiff’s July 23, 2022, inmate 3 grievance complaining of an allergic reaction to the tape used to tape his shoulder and 4 that Defendant RN Estrada advised it be treated with lotion, and the September 25, 2022, 5 Institutional Level Response to that grievance marked: “No intervention” which contains 6 a timeline of treatments from July 14-25, 2022. Id. at 27–29. RN Estrada is the only 7 Defendant mentioned in those documents. Finally, Exhibit E consists of Plaintiff’s 128 page “Personal Medical Journal of Medical Events” chronicling medical events from 9 May 10, 2022, to August 31, 2022. Doc. No. 6-2 at 1–12. It states, in relevant part, that: 10 (1) Defendant RN Estrada put lotion on Plaintiff’s shoulder burn and ignored Plaintiff’s 11 report that he was allergic to the paper used to tape his shoulder; (2) Plaintiff received a 12 second-degree burn when Defendant Dr. Ko gave him a steroid injection in his shoulder, 13 and thereafter was no longer comfortable with Dr. Ko and refused to be treated by 14 Dr. Ko; (3) LVN Coronado informed Plaintiff he had to choose between being treated by 15 Dr. Ko or submit a medical grievance which would take a least two months to process 16 which forced Plaintiff “to go man down” to receive treatment from someone other than 17 Dr. Ko; and (4) Defendant Dr. Gil prescribed a nerve medication to help reduce pain 18 pending carpel tunnel surgery. Id. Although there are references to unnamed doctors and 19 nurses in Plaintiff’s exhibits, of the 35 individuals listed as Defendants in the FAC, see 20 Doc. No. 9 at 3, none are referenced anywhere in the body of the FAC, and only 21 Defendants Dr. Seeley, Dr. Ko, Dr. Gil, LVN Coronado, LVN Camou and RN Estrada 22 are named in the exhibits attached to the FAC.1 23 Neither the FAC nor the documents attached thereto set forth facts which plausibly 24 allege any Defendant knew of and purposefully ignored or failed to respond to Plaintiff’s 25 pain or medical needs, or that the chosen course of medical treatment was “medically [27] 1 Plaintiff references Dr. Bashard in his medical journal, Doc. No. 9-2 at 2, but it is unclear whether this [28] 1 unacceptable under the circumstances” and chosen “in conscious disregard of an 2 excessive risk to the prisoner’s health.” Toguchi, 391 F.3d at 1058 . Rather, they 3 chronical the extensive responses and treatments Plaintiff received in response to his 4 requests for medical care, and at most allege that Plaintiff disagrees with the doctors and 5 nurses involved regarding whether the level of treatment he received was adequate, or 6 whether it amounted to malpractice or negligence, and do not plausibly allege an Eighth 7 Amendment claim. See Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a 8 state of mind more blameworthy than negligence” and “more than ordinary lack of due 9 care for the prisoner’s interests or safety.”); Castro, 833 F.3d at 1068 (“A prison official 10 cannot be found liable under the [the Eighth Amendment] . . . ‘unless the official knows 11 of and disregards an excessive risk to inmate health or safety; the official must both be 12 aware of facts from which the inference could be drawn that a substantial risk of serious 13 harm exists, and he must also draw the inference.’”) (quoting Farmer, 511 U.S. at 837 ). 14 Accordingly, count two of the FAC, alleging an Eighth Amendment violation 15 arising from the type of medical care Plaintiff received following his complaints of 16 numbness, pain and discomfort beginning on July 1, 2021, is dismissed sua sponte for 17 failing to state a claim pursuant to 28 U.S.C. §§ 1915 (e)(2) & 1915A(b). Watison, 668 18 F.3d at 1112; Wilhelm, 680 F.3d at 1121 . 19 If Plaintiff wishes to proceed with this action, he must set forth facts in a Second 20 Amended Complaint which plausibly allege one or more Defendants were aware of a 21 substantial risk of serious injury or harm to his health if he was not provided different 22 care and deliberately disregarded that risk. Plaintiff is cautioned not to simply attach and 23 reference exhibits as a substitute for presenting factual allegations in the body of an 24 amended complaint. See Thomas v. Donovan, No. 19cv2181-JAH (RBB), 2020 WL 25 5106663, at *5 (S.D. Cal. Aug. 28, 2020) (“[A] pro se litigant cannot simply dump a 26 stack of exhibits on the court and expect the court to sift through them to determine if 27 some nugget is buried somewhere in that mountain of papers, waiting to be unearthed and 28 refined into a cognizable claim.’”) (quoting Samtani v. City of Laredo, 274 F.Supp.3d 1 695 , at *2 (S.D. Texas 2017)); Stewart v. Nevada, No. 09cv1063, 2011 WL 588485 , at *2 2 (D. Nev. Feb. 9, 2011) (“The Court will not comb through attached exhibits seeking to 3 determine whether a claim possibly could have been stated where the pleading itself does 4 not state a claim. In short, [Plaintiff] must state a claim, not merely attach exhibits.”) 5 D. Leave to Amend 6 In light of Plaintiff’s pro se status, the Court grants leave to amend to attempt to 7 sufficiently allege a § 1983 claim if Plaintiff can and if wishes to attempt to do so. See 8 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 9 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. § 1915 (e)(2)] 10 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 11 amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 12 II. CONCLUSION 13 Good cause appearing, the Court DISMISSES all claims against all Defendants in 14 the FAC without prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915 (e)(2) 15 & 1915A(b). The Court GRANTS Plaintiff forty-five (45) days leave from the date of 16 this Order in which to file a Second Amended Complaint which cures the deficiencies of 17 pleading noted in this Order with respect to any or all other Defendants. Plaintiff’s 18 Second Amended Complaint must be complete by itself without reference to any prior 19 version of his complaint or attachments thereto. Defendants not named and any claims 20 not re-alleged in the Second Amended Complaint will be considered waived. See S.D. 21 Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 , 22 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 23 Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 24 leave to amend which are not re-alleged in an amended pleading may be “considered 25 waived if not repled”) If Plaintiff fails to timely amend, the Court will dismiss this action 26 for failure to state a claim and failure to prosecute. See Lira v. Herrera, 427 F.3d 1164 , 27 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his [28] 1 || complaint, a district court may convert the dismissal of the complaint into dismissal of 2 || the entire action.”). 3 IT IS SO ORDERED. 4 Dated: December 5, 2022 5 Mitek MM - Lligltr 6 HON. MICHAEL M. ANELLO 7 United States District Judge [28] 14 a oe