EDWARD M. CHEN, District Judge.
Charles Anderson Miller, an inmate at the Correctional Treatment Facility in Soledad, commenced this action by filing a complaint in Monterey County Superior Court. Defendant Posson then removed the action to federal court because the complaint's claims for violations of Mr. Miller's rights under the U.S. Constitution presented a federal question. The complaint is now before the Court for review under 28 U.S.C. § 1915A. Mr. Miller's application for service of a summons and complaint on certain defendants, application for appointment of an orthopedic expert, and motion for a temporary restraining order also are now before the court.
The complaint in this action is a very longwinded document — 58 pages of single-spaced typing — that provides an excessively detailed narrative of medical care providers' responses to Mr. Miller's knee problems for the last seven years. The narrative begins in 2009, and provides about 15+ pages (single-spaced) of background material that could be summarized in a short paragraph, such as is provided in the next paragraph below. Notwithstanding the wordiness of it, the complaint does state some claims for relief. The complaint alleges the following:
Mr. Miller hurt his right knee during a fall on March 29, 2009 when he was at an outside hospital for care for an unrelated problem. Docket No. 1-2 at 11. He thereafter had knee pain and eventually had arthroscopic knee surgery on August 9, 2012. Id. at 15. After the surgery, he continued to have knee pain. Doctors at the California State Prison at Corcoran, where Mr. Miller was then housed, eventually recommended a total knee replacement (TKR) surgery for Mr. Miller.
As the RFS was being processed at Corcoran, Mr. Miller was being transferred to the Correctional Training Facility in Soledad (CTF-Soledad). Mr. Miller left Corcoran on June 10, 2014, and arrived at CTF-Soledad on June 12, 2014. Id. at 18. Although Mr. Miller's TKR surgery had been approved at Corcoran, the UMRN at CTF-Soledad took the form to Dr. Darrin Bright, who determined not to provide the surgery. Id. at 19.
Dr. Ahmed failed and refused to cause the TKR surgery to be done for Mr. Miller. Dr. Bright and Dr. Posson also failed and refused to approve the TKR surgery for Mr. Miller.
Dr. Ahmed improperly tapered Mr. Miller off MS Contin, an opioid pain medication, and failed to prescribe adequate medications to address Mr. Miller's withdrawal symptoms. Dr. Ahmed also later failed to provide an adequate replacement pain medication. See id. at 26-30. Dr. Bright and Dr. Posson also made decisions that caused Mr. Miller to be taken off the MS Contin. Id. at 28.
Nurse Robert Deluna and nurse N. Knight did not obtain help for Mr. Miller's complaints of increased pain and drug withdrawal symptoms in April 2015. Id. at 29-30. Later, in August 2015, nurse Deluna told Mr. Miller that he "didn't want to have anything to do with [Mr. Miller] and all of [his] 602's" and that nurse Deluna didn't want to see Mr. Miller again unless he was having a cardiac arrest. Id. at 41.
Dr. Ahmed prescribed carbamazepine (also known as Tegretol) for pain, after Mr. Miller had informed his healthcare providers that he would not give informed consent for them to "prescribe antidepressants, antiseizure/anticonvulsant, and/or anti-psychotic/psychoactive drugs for `off label' use to treat plaintiff's right knee pain." Id. at 33. Dr. Ahmed told Mr. Miller that carbamazepine was not such a drug and would have no appreciable side effects. Id. The drug is approved as an anticonvulsant, and Dr. Ahmed fraudulently induced Mr. Miller to take it by failing to disclose that the drug was an anticonvulsant. Id. Mr. Miller had chest pains and irregular heartbeat shortly after taking carbamazepine for the first time, and decided to never take it again. Id. at 33-34. When Mr. Miller wrote a letter of complaint to the doctors at the prison about the prescription of carbamazepine, his prescription was cancelled. Id. at 34. Nurse Knight made comments to the effect that Mr. Miller was creating problems by complaining so much and things would get worse if he continued to file inmate appeals and requests for service. Id at 34.
Dr. Schultz prepared a radiology report dated January 22, 2015, which was not "wholly incorrect," but "almost certainly fashioned/created to omit the facts contained in the actual 12/10/2013 radiology report by Dr. Laufik." Id. at 23-24.
Dr. Troup allegedly fabricated a report for x-rays that were ordered but not actually done on April 30, 2015. Id. at 32.
Mr. Miller was sent to Dr. Williams for a consultation as to the appropriate care for his knee. Id. at 39. Dr. Williams saw Mr. Miller via a telemedicine link on July 30, 2015, and wrote a report the next day that had several inaccuracies. Dr. Williams opined that a TKR surgery was unnecessary because Mr. Miller had not exhausted all conservative treatment options, recommended physical therapy and a steroid injection, and directed that Mr. Miller be returned to him in 3-4 months. Id. at 40. The return visit did not occur.
Dr. Ahmed then prepared an RFS for steroid injections for Mr. Miller's right knee but did not order physical therapy. Dr. Ahmed stated that he did not order physical therapy because all the physical therapists had done nothing but talk to Mr. Miller instead of providing hands-on therapy. Id. at 41. Mr. Miller received the steroid injection on September 2, 2015. Id. at 42.
To date, Mr. Miller apparently has not received the TKR surgery he wants.
A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the Court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). (Section 1988 of Title 42 of the United States Code, also cited by Mr. Miller, does not provide a substantive cause of action; it allows for attorney's fees.)
A claim is not stated against Dr. Williams for retaliation, as his activity was limited to allegedly providing a telemedicine consultation in response to Mr. Miller's many inmate appeals and extensive disagreement with the medical care he was being provided. While Dr. Williams' acts followed Mr. Miller's First Amendment activity, in that Dr. Williams was tasked with evaluating Mr. Miller due to the latter's inmate appeals, merely making a decision adverse to a prisoner is not inherently retaliatory. Retaliation has a collateral nature that Mr. Miller's approach ignores as he attempts to label as retaliatory everything other than prompt, cheerful and agreeable responses to his apparently numerous requests.
Mr. Miller has filed a request for a temporary restraining order (TRO) to compel defendants (a) not to transfer him and (b) to arrange the TKR surgery Mr. Miller wants. He is not entitled to a TRO on either point.
Mr. Miller's contention that he should remain at CTF-Soledad so that he does not suffer further delay in surgery due to a transfer rings hollow in light of the theme of his complaint that doctors at CTF-Soledad — the chief medical executive, the chief physician and surgeon, and his primary care provider — have steadfastly refused to provide him with the surgery he wants. Mr. Miller also has not shown that his transfer to another prison is imminent. The memorandum from his most recent classification committee hearing on May 18, 2016, does not show that he is soon to be transferred. See Docket No. 23 at 70. Moreover, even if Mr. Miller is transferred, effective injunctive relief could be ordered if he prevails because at least one of the defendants (CDCR) apparently would have statewide authority to provide the requested surgery. Mr. Miller's request for a TRO to keep him at CTF-Soledad fails because he does not "demonstrate irreparable injury is likely in the absence of" interim relief. Winter, 555 U.S. at 22. He provides no evidence that any defendant has threatened or taken steps to transfer him and instead speaks in generalities and relies on unpersuasive prison scuttlebutt about medical care to try to make his point that he might be transferred. And, he provides no evidence that a transfer would cause him irreparable injury.
As to the request for a TRO compelling defendants to arrange a TKR surgery, Mr. Miller has not met the high standard necessary to obtain the extraordinary relief he now seeks. When, as here, the party seeks interim relief that requires a defendant to take affirmative action (as opposed to refrain from taking action), the movant's burden "is doubly demanding," and he "must establish that the law and facts clearly favor [his] position, not simply that [he] is likely to succeed" on the merits. Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015). In essence, Mr. Miller wants his surgery now, and to litigate his entitlement to it later. But that will not happen because, on the record now before the court, it cannot be said that he has demonstrated a likelihood of success on the merits, let alone that the law and facts clearly favor his position. The allegations of the complaint and the attachments thereto show a sharp difference of opinion between Mr. Miller and the defendant-doctors at CTF-Soledad as to whether TKR surgery is necessary at this time. The defendant-doctors apparently are of the view that his knee problem is not severe enough to warrant TKR surgery, and that other more conservative methods should be pursued. To prevail on an Eighth Amendment "claim involving choices between alternative courses of treatment, [an inmate] must show that the chosen course of treatment `was medically unacceptable under the circumstances,' and was chosen `in conscious disregard of an excessive risk to [the inmate's] health.'" Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). The evidence now in the record does not show a likelihood of success for Mr. Miller in showing that the decisions made by the defendants to deny him TKR surgery were done with deliberate indifference to Mr. Miller's serious medical needs. Further, under state law, a plaintiff alleging professional negligence by a doctor must support his claim with expert medical evidence, which Mr. Miller has not yet done. See Landeros v. Flood, 17 Cal.3d 399, 410 (Cal. 1976) (citation omitted) ("`The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.'"); Bromme v. Pavitt, 5 Cal.App.4th 1487, 1498 (Cal. Ct. App. 1992) ("in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony"). For these reasons, Mr. Miller's request for a temporary restraining order is
Finally, the Court notes that numerous filings from Mr. Miller have been unnecessarily long-winded (e.g., the 58-page single spaced complaint, the 7-page single spaced declaration in support of the application for appointment of an expert, and the 8-paged application for appointment of an expert (which was in addition to the 11-page memorandum of points and authorities in support of that application)). In the future, Mr. Miller should attempt to be more concise in his filings. A memorandum of points and authorities should contain all his legal arguments, but should not be bulked up with unnecessary and irrelevant argument. Any declaration he submits should not include legal argument and should only contain statements of facts of which he has personal knowledge.
Plaintiff must comply with the following rules about formatting and scheduling. First, any motion, legal brief or declaration he files may have text on only one side of a page, must be double-spaced with no more than 28 lines per page (except that quotations may be single-spaced), and any typewritten text must be at least 12-point type. See N.D. Cal. Local Rule 3-4(c). Second, for any motion, the motion— including the notice of motion as well as the legal argument (also known as the points and authorities) in support of the motion — may not exceed 25 pages in length. N.D. Cal. Local Rule 7-2. Any opposition brief or memorandum of points and authorities may not exceed 25 pages of text, and any reply may not exceed 15 pages to text. N. D. Cal. Local Rule 7-3. After the reply is filed, no further argument, briefing or evidence may be submitted. All motions will be decided on the papers without oral argument unless the Court specifically orders otherwise.
1. The complaints states cognizable claims against the defendants under federal and state law as stated in Section A of the Discussion section, above. All of the defendants except Dr. Schultz, Dr. Troup and nurse Knight have been served and appeared in this action.
2. The Clerk shall issue a summons and the United States Marshal shall serve, without prepayment of fees, the summons, a copy of the first amended complaint and a copy of all the documents in the case file upon the following three defendants:
3. In order to expedite the resolution of this case, the following briefing schedule for dispositive motions is set:
a. No later than
b. Plaintiff's opposition to the summary judgment or other dispositive motion must be filed with the Court and served upon Defendants no later than
c. If Defendants wish to file a reply brief, the reply brief must be filed and served no later than
4. Plaintiff is provided the following notices and warnings about the procedures for motions for summary judgment and motions to dismiss for non-exhaustion of administrative remedies:
The defendants may file a motion to dismiss for failure to exhaust administrative remedies instead of, or in addition to, a motion for summary judgment. A motion to dismiss for failure to exhaust administrative remedies is similar to a motion for summary judgment in that the court will consider materials beyond the pleadings. You have the right to present any evidence you may have which tends to show that you did exhaust your administrative remedies or were excused from doing so. The evidence may be in the form of declarations (that is, statements of fact signed under penalty of perjury) or authenticated documents (that is, documents accompanied by a declaration showing where they came from and why they are authentic), or discovery documents such as answers to interrogatories or depositions. In considering a motion to dismiss for failure to exhaust, the court can decide disputed issues of fact with regard to this portion of the case. If defendants file a motion to dismiss and it is granted, your case will be dismissed and there will be no trial. See generally Stratton v. Buck, 697 F.3d at 1008.
5. All communications by Plaintiff with the Court must be served on a Defendant's counsel by mailing a true copy of the document to the Defendant's counsel. The Court may disregard any document which a party files but fails to send a copy of to his opponent. Until a Defendant's counsel has been designated, Plaintiff may mail a true copy of the document directly to the Defendant, but once a Defendant is represented by counsel, all documents must be mailed to counsel rather than directly to that Defendant.
6. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required before the parties may conduct discovery.
7. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every pending case every time he is moved to a new facility.
8. Plaintiff is cautioned that he must include the case name and case number for this case on any document he submits to the Court for consideration in this case.
9. Defendants' motion to screen the complaint is
10. Plaintiff must provide a name for the defendant he refers to as "UMRN" and alternatively as Doe # 1 no later than
Mr. Miller has represented that this action only "concerns events having taken place since June 4, 2014." Docket No. 15 at 2; see also Docket No. 1-2 at 43-59 (identifying the dates of the events and omissions giving rise to the causes of actions as occurring in June 2014 and later). The allegations about the events and omission on and after June 4, 2014 start at about paragraph 37 of the complaint. Defendants must address all the allegations against each of the defendants, starting with the allegations in paragraph 37 of the complaint.
