ERICA P. GROSJEAN, Magistrate Judge.
Charles A. Miller ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983.
This action was initiated by civil complaint filed by Plaintiff in the Fresno County Superior Court on June 15, 2010 (Case #10CECG02100). On March 8, 2012, defendants Adonis, Griffith, Gutierrez, Igbinosa, Medina, and Mendez removed the case to federal court and requested the court to screen the complaint under 28 U.S.C. § 1915A. (ECF Nos. 1, 2.) On March 8, 2012, defendants California Department of Corrections and Rehabilitation ("CDCR"), Ahmed, Anderson, Chudy, Duenas, Eddings, Pascual, and Walker joined in the Notice of Removal of Action. (ECF No. 4.) On October 4, 2012, the Court
On October 17, 2013, the Court dismissed the Complaint for violation of Rule 8(a) of the Federal Rules of Civil Procedure, with leave to amend. (ECF No. 32.) On December 2, 2013, Plaintiff filed the First Amended Complaint. (ECF No. 35.) On June 19, 2014, the Court issued an order striking the First Amended Complaint for Plaintiff's failure to comply with the court's order of October 17, 2013. (ECF No. 40.) Plaintiff was granted leave to file a Second Amended Complaint. (Id.) On August 13, 2014, Plaintiff filed the Second Amended Complaint. (ECF No. 44.) The Court screened the Second Amended complaint on June 29, 2015. (ECF No. 46) The Court found that Plaintiff's Second Ameneded Complaint stated a cognizable Eighth Amendment medical claim against defendant Officer M. Medina for not allowing him to sit down instead of standing, but found that the Second Amended Complaint failed to state any other claims. (ECF No. 46). The Court gave Plaintiff a choice of going forward on that one claim or further amending his complaint.
On July 10, 2015, Plaintiff filed a motion for reconsideration, asking for District Court to conduct a de novo review and arguing that the Magistrate Judge erred in dismissing all but one claim (with leave to amend). (ECF No. 47) On July 16, 2015, District Judge Lawrence J. O'Neill denied Plaintiff's motion for reconsideration. (ECF No. 47)
Plaintiff filed a Third Amended Complaint on July 31, 2015, which is now before this Court for screening. (ECF No. 49)
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."
Plaintiff's Third Amended Complaint (TAC) is brought against 20 named defendants: Defendants M. Adonis, the CDCR, Felix Igbinosa, B. Baxter, Susan Rido, Melissa Griffith, G. Mendez, Etta Brown, Angelica Duenas, B. Howerton, E. Eddings, A. Walker, A. Gutierrez, Joseph Chody, J. Anderson, Tim Frederichs, Z. Ahmed, Y. Olivas, L. Fernandez, M. Medina. Additionally, Plaintiff includes "various unidentified DOE persons whose identities plaintiff does not currently know who joined in, or participated knowingly in, a retalitory [sic] transfer of plaintiff from PVSP to CTF-Soledad."
Plaintiff alleges that, in late March 2009, Plaintiff developed a kidney stone condition that required him to be hospitalized. On March 31, 2009, while hospitalized at Community Regional Medical Center (CRMC), a doctor named Christina Hernandez ordered x-rays of Plaintiff's right knee. Those x-rays did not reveal evidence of a fracture, dislocation, or bone density abnormality. Dr. Hernandez then ordered Plaintiff to be seen by an orthopedic specialist and physical therapist. She also ordered that Plaintiff's knee be immobilized.
On April 3, 2009, Plaintiff was seen by Orthopedic P.A. Antonio Rubio as well as Physical Therapist Katie Clark. When Plaintiff was discharged, Dr. Hernandez issued the following treatment order: "Mr. Miller has an appointment c [sic] our ortho clinic on 4-19-09 at 8:45 am and an MRI as an outpt on June 5 at 1:00 pm here at Fresno Comm. Hospt."
Plaintiff alleges that Dr. Hernandez's orders were made known to Defendants Igbinosa, Rido, and Baxter in writing and telephonically on April 3, 2009. Defendant Igbinosa was responsible for all healthcare services and policies at PVSP. He had an obligation to properly train and supervise subordinates on how to fill out and submit for approval the "Physician Request for Service" ("RFS") forms, and had a duty to timely and promptly respond to 602 grievances, yet failed to do so. Defendant Igbinosa's failure to train subordinate defendants was a moving force behind the delay in examination.
Defendant Rido chose not to leave her home to come out to the PVSP prison and personally examine Plaintiff's knee injuries as the "duty physician" should have done. Defendant Rido failed to do an RFS form herself, nor direct and train Defendant Baxter to do one. Plaintiff alleges that Defendant Rido, as an off-site physician, was insufficiently trained to do an RFS and did not want to be responsible for follow-up treatment.
Defendant Rido authorized Defendant Baxter to write a physician's order on CDC-7221 and CDC-7230 forms. Baxter did so and noted the need for an orthopedic specialist examination on 4/19/09. Defendant Baxter also prepared a physician's order on April 3, 2009, which caused Plaintiff to be issued a wheelchair, walker, cane and knee brace, upon his return to PVSP, as well as Motrin for pain. But Defendant Baxter refused to summon Defendant Rido to physically examine plaintiff's knee.
Together, Defendants Igbinosa, Rido and Baxter's failure to take the necessary steps to get Plaintiff the physician ordered orthopedic specialist examination resulted in a delay from the April 19, 2009 planned examination date through May 29, 2009, when Plaintiff finally obtained a CT Scan. Plaintiff received the CT scan on May 29, 2009 because he filed a CDCR-602 grievance, which was partially granted.
The CT scan that took place on May 29, 2009 was read on June 5, 2009. It revealed fractures of the distal femur, proximal tibia, anterior subluxation, meniscus tears, bone density loss, and hypertrophic changes. Plaintiff alleges that such issues were due to improper healing caused by the Defendants' delay in providing adequate medical care after his fall on March 31, 2009.
On August 4, 2009, Plaintiff receivd an orthopedic specialist examination from Dr. Marshall S. Lewis. Arthroscopic surgery was recommended to repair the medial/lateral mensici [sic], perform a partial menisectomy/synovectomy, but not to effect primary cruciate ligament repairs due to the permanent nature of their damage. Plaintiff alleges that the four month delay in seeing an orthopedic specialist caused improper healing.
Defendants Brown and Duenas were complicit in these delays due to their inadequate responses to Plaintiff's 602 grievances. Defendant Dr. Duenas and Physician's Assistant Brown were in a position to resolve the delay and had authority to do a proper RFS, but did nothing until September 3, 2009, when they partially granted and partially denied Plaintiff's 602 because Plaintiff had seen Dr. Lewis and was pending transfer out of PVSP.
Defendant Griffith saw Plaintiff on April 23, 2009 in response to CDC-7362 that Miller submitted and Defendant Griffith noted Plaintiff's inability to walk on his right knee at the time. Defendant Griffith knew of Plaintiff's mobility impairment and the physican orders that Plaintiff use a wheelchair, walker, cane and knee brace to get around PVSP. But none of the Defendants told Plaintiff to cease using his right knee/leg for sufficient time to let it heal.
On June 23, 2009, Dr. Menagral told Plaintiff about the results of his CT Scan and renewed the comprehensive accommodation chrono for use of the wheelchair, walker, cane and knee brace pending the orthopedic specialist examination.
At some unidentified point in time, Plaintiff alleges that Defendants Griffith, Walker, Eddings, and others who are unknown but were employed at PVSP in 2009, entered into a meeting of the minds, plan or agreement to transfer Plaintiff out of PVSP in retaliation for Plaintiff having assisted a fellow state prisoner, Arthur Semendinger, in his separate lawsuit against Defendant Griffith and others. On June 24, 2009, Defendants Walker, Eddings and other Doe defendants held a meeting in which Plaintiff appeared in a wheelchair and was informed that he was being transferred to another prison as a result of Plaintiff assisting inmate Semendinger in his lawuit against Mills, May, and Griffith. Plaintiff objected to this transfer on the basis that the prison under consideration for transfer, Ironwood State Prison, was not a wheelchair compatible facility. Defendant Eddings told Plaintiff: "Your need for a wheelchair, or other medical needs, is not our main concern or problem. Its [sic] a medical problem that is between you and the medical department . . . . Your [sic] here for transfer consideration to ISP because you put together an affidavit that was filed in another inmate's lawsuit against Sergeant May, and Lieutenant Mills, that caused the Court to rule against them during a recent hearing, and we feel you need to be transferred out of this institution [PVSP] for your own good as well as theirs." Defendant Walker stated "you wouldn't be having this problem if you would slow your roll when it comes to helping other prisoners with their litigation. We don't have a problem when your doing your own legal work, but helping other inmates with claims against my facility supervisors means you, or they, need to go." Defendant Walker also explained to Plaintiff "We don't care what your medical problems are, or anything about your medical concerns, were [sic] here to transfer you because your [sic] a security problem from our way of seeing things. You can't expect to stay at this prison very long, or any other one for that matter, to get your medical needs handled property, if all you want to do is instigate other inmates to litigate claims against our staff." The participants in that meeting all chilled Plaintiff's willingness to help other prisoners with litigation, or be a witness for another inmate unless the litigation involves himself as a party to the action.
Defendants' attempt to transfer Plaintiff to ISP was unsuccessful because the transportation sergeant refused to transport Plaintiff in a wheelchair to ISP.
Following the meetings and unsuccessful attempt to transfer Plaintiff, Plaintiff resumed helping inmate Semedinger prepare briefs in his case. The court ruled in favor of Mr. Semedinger at the hearing resulting from the briefs prepared by Plaintiff. Defendant Eddings overheard these court proceedings.
After the court hearing, Defendant Eddings summoned Plaintiff to his office at PVSP and told Plaintiff he was being transferred to CIF-Soledad because "You just don't seem to get it. So long as you persist in helping Semendinger with his lawsuit against staff, your[sic] going to be the one who suffers the consequences, not him." When Plaintiff objected that transfer would interfere with his knee surgery, Defendant Eddings told Plaintiff "The Warden, and litigation office, don't care about your surgery. They just want you out of here, like the rest of us."
Plaintiff was transferred to CIF-Soledad on September 24, 2009.
Before his transfer, Dr. I. Paja issued a Comprehensive Accomodation Chrono, physician's order, that Plaintiff be provided with a cane, knee brace, walker and wheelchair for six months. This was approved by Defendant Igbinosa and the PVSP "Mar Committee." It should have been effective until March 16, 2010.
On September 21, 2009, Plaintiff was summoned to the PVSP medical clinic and Defendants Mendez, Adonis, Griffith, Gutierrez, and Duenas told Plaintiff to turn in the wheelchair, walker, knee brace and cane to them for purpose of being transferred to CIF-Soledad on September 24, 2009 so that CDCR transportation staff would take Plaintiff on the bus, unlike last time there was a planned transfer. Plaintiff was told he could have these appliances at CIF-Soledad. Plaintiff told these defendants that he could not walk more than 50 feet without his knee giving out. Defendant Adonis gave Plaintiff a receipt for the wheelchair. However, no wheelchair was reissued to him at CIF-Soledad upon his arrival.
Plaintiff was then returned to his cell and was put on a modified "confined to quarter" status pending transfer, but he still had to move or walk about in pain at times.
Before that transfer, Defendant Howerton intentionally fabricated the medical record to state that Plaintiff was refusing surgery and wanted to transfer. This fabrication further delayed Plaintiff's knee surgery.
The next day, Defendants Griffith, Mendez, and Gutierrez approached Plaintiff with a CDCR-7225 form for "Refusal of Examination and/or Treatment" that had been filled out for Plaintiff to sign. But Plaintiff wrote "I want my surgery and am not refusing it at all." Defendants Mendez, Griffith and Gutierrez told Plaintiff that he would be transferred to CIF-North on September 24, 2009 "if you sign the CDC-7225 form or not, and if you do not sign the form stating that you consent to have your surgery continued at the new prison, you will probably never receive the surgery at CIF because they will consider your refusal to sign as a refusal of the treatment altogether." Plaintiff then wrote on the form "I want my surgery but also want to transfer out on schedule. Would like to continue the surgery at my next institution." Defendants Griffith and Mendez assured Plaintiff again that upon his arrival at CIF-Soledad, he would be provided with a knee brace, wheelchair, and/or walker, pending knee surgery.
Plaintiff alleges that defendants knew or reasonably should have known that he would not be provided with a wheelchair, walker and knee brace at CIF-Soledad after transfer because it was not a CDCR institution that accommodated ADA disabled persons.
On September 24, 2009, Plaintiff was transferred from PVSP to CIF-Soledad without a lift as had been ordered by Dr. Paja and approved by Defendant Igbinosa and the PVSP MAR Committee.
Upon arrival at CIF-Soledad, R. Pascual told Plaintiff that CIF "does not accommodate wheelchair bound" prisoners and that no knee brace, wheelchair or walker was available for him. Plaintiff was given a cane.
Plaintiff alleges that Defendant Chudy, the CIF Chief Medical Officer, and Defendant Frederichs, the CIF Chief Physician and Surgeon, as of September 24, 2009 were responsible for promulgating the policy of not providing prisoners in need of wheelchairs, walkers and knee braces any applicances regardless of their medical needs.
Plaintiff filed multiple grievances at CIF-Soledad requesting medical care and treatment. In the meantime, Plaintiff was walking on his right knee only using a cane for support for another 5 to 6 weeks.
Plaintiff saw a CIF physician, Defendant Ahmed, on November 25, 2009. Defendant Ahmed told Plaintiff he could not order him a wheelchair or walker because "CIF has an unwritten policy to the effect that we cannot accommodate prisoner's [sic] with wheelchair, or walker, needs." Defendant Ahmed further explained "it doesn't matter if you need a wheelchair, walker, or other orthopedic applicance in order to walk, you won't get one here. You'll need to be transferred someplace else." Plaintiff received similar responses to his 602 grievances, where prison officials indicated "CIF does not accommodate wheelchair bound Pt." Defendant Ahmed prescribed MS contin ("morphine") to Plaintiff. Defendant Ahmed also issued instructions that Plaintiff had a need for a cane, low-bunk, no stair usage, and no bending restrictions.
On January 29, 2010, Plaintiff met with an orthopedic specialist/surgeon named Dr. Donald Pompan, who recommended Plaintiff for arthroscopic surgery. Dr. Pompan notes that Plaintiff should be provided with a wheelchair and/or walker "if" or "when" needed. Nevertheless, the prison continued to deny Plaintiff's requests for a wheelschair and walker in 602 grievances.
On January 31, 2010, Defendant Medina, a prison guard, observed Plaintiff sitting on a wooden bench after the evening meal. The guard asked why Plaintiff was not standing. Plaintiff showed Defendant Medina proof of his medical problem. Nevertheless, Defendant Medina ordered Plaintiff to stand at his door anyway. Following 602's, Medina was told that Plaintiff could be seated in front of his cell when needed. Even after learning of this decision, Defendant Medina again ordered Plaintiff to stand by his cell door while waiting to go to the evening meal. Defendant Medina threatened Plaintiff with disciplinary action if he did not stand, and said that he (Medina) did not have to comply with the directive of his superiors. Plaintiff did as ordered but reinjured his menisci and suffered excruciating pain as a result.
Plaintiff brings the following claims: cruel and unusual punishment in violation of the Eighth Amendment, retaliatory transfer in violation of the First Amendment, interference with civil rights in violation of the Bane Act Civil Code § 52.1, negligence in violation of Government Code § 845.6, and professional negligence (medical malpractice).
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'"
"Deliberate indifference is a high legal standard."
"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim."
The Court finds that Plaintiff's TAC states an Eighth Amendment claim for deliberate indifference to serious medical needs against Defendant Medina. Plaintiff alleges that Defendant Medina was aware of Plaintiff's medical needs and disregarded them by ordering Plaintiff to stand on his injured knee and that Plaintiff suffered injury as a result.
The Court also finds that Plaintiff's TAC states a cognizable claim against Defendant Chudy, the CIF Chief Medical Officer, and Defendant Frederichs, the CIF Chief Physician and Surgeon, for promulgating the policy of not providing prisoners in need of wheelchairs, walkers and knee braces any applicances despite need.
Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law.
That said, supervisors can be held directly liable under certain narrow circumstances.
As the Ninth Circuit explained:
The Court finds that Plaintiff's TAC satisfies this narrow exception for supervisory liability, at least at the pleading stage. The TAC includes specific factual allegations that CIF Soledad does not accommodate wheelchair bound prisoners at all, regardless of their medical needs. He alleges he was explicitly told this multiple times including by R. Pascual, Dr. Ahmed, and L. Fernandez. Plaintiff alleges that he had a serious medical need for a wheelchair and this was supported by factual allegations that medical professionals had prescribed him a wheelchair. Plaintiff also alleges that he was repeatedly denied a wheelchair solely due to this policy. He also specifically alleges that Defendants Chudy and Fredericks personally created this policy. Liberally construed in favor of Plaintiff, as the Court must do at this stage, the Court finds that Plaintiff has alleged that Defendants Chudy and Fredericks are liable for deliberate indifference to medical needs under the Eighth Amendment based on their promulgation and enforcement of an unconstitutional policy at CIF-Soledad.
The Court finds that Plaintiff fails to allege a viable Eighth Amendment claim as to any of the remaining defendants. The Court has carefully examined Plaintiffs long and frustrating history of trying to get medical care for his knee. But it finds that no other defendant's actions, as alleged, satifies the all the elements of an Eighth Amendment violation. For certain actors, such as those who did not process the correct form for his orthopedic consultation, Plaintiff fails to allege deliberate indifference, i.e. a purposeful act or failure to respond to a prisoner's medical need. For other actions that do appear to be deliberate, such as falsifying a form or coercing a response to the form to make it appear that Plaintiff had waived surgery, it does not appear that such actions caused further injury because Plaintiff continued to insist that he wanted such surgery. In other words, Defendant's attempts to deny medical care based on falsification of forms were unsuccessful. Plaintiff's allegations about prison staff at PVSP removing his appliances before transfer do not establish sufficient deliberate indifference because they allowed him a restricted cell movement status and indicated that he would get his wheelchair at CIF-Soledad, which was a decision outside their control. In the end, Plaintiff's allegations taken as a whole indicate that PVSP officials allowed Plaintiff to consult doctors, have a wheelchair and other assistance, and scheduled surgery, albeit later than Plaintiff wished.
As will be discussed below, PVSP's actions occured in the shadow of a dispute about Plaintiff's legal assistance to another inmate ultimately resulting in his transfer to CIF-Soledad. Plaintiff has not established that the transfer was done intentionally to deprive him of medical care, and indeed Plaintiff alleges that it was done in retaliation for his work on other inmates' legal cases. The allegations, construed in Plaintiff's favor, establish that CIF-Soledad stopped these accommodations due to a policy by the supervisors of the prison, as discussed above. The Court thus does not find that any of the defendants' actions at PVSP as alleged rise to the level of a constitutional Eighth Amendment violation.
Plaintiff next brings a First Amendment retaliation claim against certain PVSP defendants on the basis that they transferred him to another prison in retaliation for Plaintiff's legal assistance to other inmates.
Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim.
Plaintiff has alleged that prison officials at PVSP transferred him because of his assistance of another inmate's legal proceedings and that it chilled his willingness to assist other prisoners in their litigation.
The Ninth Circuit addresssed the issue of legal assistance to other inmates in
That said, the Ninth Circuit in
Also relevant to this analysis is the U.S. Supreme Court's holding in
With these legal standards in mind, the Court has doubts about whether Plaintif's retaliation claim will ultimately survive. The Court also questions whether Defendants would be entitled to qualified immunity given the legal precedent on this issue. Nevertheless, this Court recommends that the Plaintiff go forward with this claim past the screening stage so that the Court can evaluate it with a more fully developed record and input from Defendants regarding the basis for the transfer, the ability of the inmates to receive legal assistance from other means, and any security issues involved.
Accordingly, the Court finds that Plaintiff states a claim for retaliation under the First Amendment against Defendants Eddings and Walker.
Plaintiff also brings the following claims under state law: interference with civil rights actionable under Bane Act. Civil Code § 52.1, statutory negligence under Government Code § 845.6, and Professional Negligence/Medical Malpractice.
The Court does not have jurisdiction over state law claims, unless subject to the Court's supplemental jurisdiction. Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court "shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III [of the Constitution]," with specific exceptions. "Pendent jurisdiction over state claims exists when the federal claim is sufficiently substantial to confer federal jurisdiction, and there is a `common nucleus of operative fact between the state and federal claims.'"
In this instance, the Court has found a cognizable federal section 1983 for deliberate indifference to serious medical needs under the Eighth Amendment against Defendant Medina, Defendant Chudy, and Defendant Frederichs. The Court has also found a cognizable federal section 1983 for retaliation under the First Amendment against Defendants Eddings and Walker. The Court will examine the three state law claims to determine whether supplemental jurisdiction would be appropriate under these legal standards.
California's Bane Act, Civil Code § 52.1, provides:
The Court finds that the Bane Act claim against Defendants Eddings and Walker is sufficiently related to the retaliation claim to confer federal jurisdiction, as there is a common nucleus of operative fact between the state and federal claims. Plaintiff has alleged a colorable claim against Defendants Eddings and Walker that some coercion was involved in order to deter excercise of a constitutional right. The same is true of Plaintiff's Bane Act claim against Defendant Medina, where Plaintiff has alleged coercive conduct by Defendant Medina that arguably was meant to deter Plaintiff's right to be free from cruel and unusual punishment, and that Bane Act claim is substantially related to the Eighth Amendment claim the Court has found cognizable against Defendant Medina. In contrast, Plaintiff has not alleged any arguably coercive acts by Defendant Chudy and Defendant Frederichs so the TAC fails to state a Bane Act claim against them even though Plaintiff's allegations under this cause of action are related to Plaintiff's constitutional claim.
The Court thus recommends exercising supplemental jurisdiction over Plaintiff's Bane Act claims against Defendants Eddings, Walker, and Medina, but no other defendants. The Court does not find a sufficiently related colorable Bane Act claim against any other defendants to warrant exercising supplemental jurisdiction over them.
California Government Code § 845.6 provides (with certain exceptions) that "a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care." Cal. Gov. Code § 845.6.
The Court finds that the Section 845.6 claim against Defendants Medina, Chudy, and Frederichs is sufficiently related to the Eighth Amendment claim to confer federal jurisdiction, and there is a common nucleus of operative fact between the state and federal claims. The Court thus recommends exercising supplemental jurisdiction over the Section 845.6 claim against Defendants Medina, Chudy, and Frederichs, but no other defendants. The Court does not find a sufficiently related claim against any other defendants to warrant exercising supplemental jurisdiction.
To show medical malpractice under California law, a plaintiff must establish: "`(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'"
The Court does not find that the medical malpractice claims are sufficiently related to any of the federal claims the Court recommends going foward. The Court has not found that Plaintiff has stated a federal constitutional claim against any medical professional. Accordingly, the Court recommends declining to exercise jurisdiction over any claims for professional negligence under California law as to any defendant.
The Court has screened Plaintiff's Third Amended Complaint and finds that it states cognizable claims against Defendants Medina, Chudy and Frederichs for Deliberate Indifference to Serious Medical Needs in violation of the Eighth Amendment, as well as for violation of Government Code § 845.6. The Court also finds a colorable claim under the Bane Act against Defendant Medina that is substantially related to the Eighth Amendment claim. The Court also finds that Plaintiff's Third Amended Complaint states cognizable claims against Defendants Eddings and Walker for Retaliation in violation of the First Amendment, as well as for violation of the Bane Act. However, the TAC states no other cognizable claims subject to this Court's jurisdiction against any of the other defendants.
Plaintiff shall be granted thirty days in which to file a written response to the Court, either (1) notifying the Court that he is willing to proceed only on the claims found cognizable by the court, or (2) notifying the Court that he does not agree to proceed only on the cognizable claims, in which case the Court will recommend to the District Court that the non-cognizable claims be dismissed from this action. Given that this is Plaintiff's Third Amended complaint, and prior order have provided extensive explanation of the legal principles involved, the Court finds that further amendment would be futile.
Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
