(PC) Cortinas v. Neel

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 2:21-cv-0611 TLN AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KATHERINE NEEL, et al.,

15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court are defendants Soltanian-Zadeh and Bobbala’s motions 19 to dismiss (ECF Nos. 33, 39), plaintiff’s motions to compel (ECF Nos. 46, 48, 50), and 20 defendants Gates, Lynch, and Sahota’s motion for an extension of time (ECF No. 49). 21 I. Procedural History 22 Upon screening the complaint, the court found that plaintiff had stated claims for 23 deliberate indifference based on the denial of pain medication against defendants Bobbala, 24 Sahota, Soltanian-Zadeh, Lynch, and Gates; deliberate indifference based on the denial of 25 medication assisted treatment against Sahota, Soltanian-Zadeh, and Lynch; and retaliation against 26 Soltanian-Zadeh. ECF No. 8. Plaintiff’s other allegations were found to be insufficient to state 27 claims for relief and he was given the option of proceeding on his cognizable claims or amending 28 the complaint. Id. at 10. Plaintiff chose to proceed on the complaint as screened and voluntarily 1 dismissed all claims against defendant Neel; the retaliation claims against defendants Bobbala, 2 Sahota, Lynch, and Gates; and the deliberate indifference claims based on the denial of 3 medication assisted treatment against defendants Gates and Bobbala. ECF No. 11. Defendants 4 Soltanian-Zadeh and Bobbala have moved to dismiss the claims against them (ECF Nos. 33, 39) 5 and plaintiff opposes the motions (ECF Nos. 37, 44). Defendants Gates, Lynch, and Sahota have 6 answered the complaint and have filed a request for an extension of time to respond to discovery. 7 ECF Nos. 40, 49. Plaintiff has also filed motions to compel discovery responses from Bobbala. 8 ECF No. 46. 9 II. Plaintiff’s Allegations 10 Relevant to the motions to dismiss, plaintiff alleges that defendants Soltanian-Zadeh and 11 Bobbala violated his rights under the First and Eighth Amendments. ECF No. 1. Plaintiff alleges 12 that after years of being prescribed methadone, which was discontinued as punishment for filing 13 lawsuits, he developed an addiction to heroin, which he uses to treat his chronic pain. Id. at 4-5. 14 In May 2020, Soltanian-Zadeh refused to issue a prescription for tramadol to treat plaintiff’s pain, 15 even though the response to plaintiff’s health care appeal confirmed he should be receiving 16 tramadol. Id. at 6. It appears that Bobbala was responsible for an early-stage response to the 17 appeal. Id. He further alleges that despite multiple medical forms requesting treatment for pain 18 caused by damage to plaintiff’s cervical and lumbar spine, Soltanian-Zadeh and Bobbala 19 continued to allow plaintiff to suffer in pain. Id. 20 Additionally, on July 10, 2020, Soltanian-Zadeh determined that plaintiff required 21 medication assisted treatment for his heroin abuse and an appointment was scheduled for August 22 9, 2020. Id. at 4. However, during the appointment plaintiff asked Soltanian-Zadeh why he 23 would not treat him and Soltanian-Zadeh responded that he would not treat plaintiff unless he 24 dismissed his litigation against the medical department. Id. After the appointment, Soltanian- 25 Zadeh stopped all of plaintiff’s pain medication and prevented plaintiff’s August 9, 2020 26 appointment from taking place. Id. 27 //// 28 //// 1 III. Motions to Dismiss 2 A. Legal Standard for Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) 3 In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a 4 complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it 5 must contain factual allegations sufficient to “raise a right to relief above the speculative level.” 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “‘[T]he pleading must 7 contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a 8 legally cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & 9 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). “[A] complaint must 10 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 11 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 14 Twombly, 550 U.S. at 556). 15 In reviewing a complaint under this standard, the court must accept as true the allegations 16 of the complaint in question, Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) 17 (citation omitted), as well as construe the pleading in the light most favorable to the plaintiff and 18 resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) 19 (citations omitted). 20 B. Requests for Judicial Notice 21 Defendants Soltanian-Zadeh and Bobbala request that the court take judicial notice of 22 various proceedings in both this court and the state court and of defendant Bobbala’s May 2020 23 response to plaintiff’s grievance. ECF Nos. 33-2, 39-1. The court “may take notice of 24 proceedings in other courts, both within and without the federal judicial system, if those 25 proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria 26 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citation and internal 27 quotation marks omitted); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are 28 capable of accurate determination by sources whose accuracy cannot reasonably be questioned). 1 When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert 2 the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond. A 3 court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the 4 complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment. 5 6 United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) (internal citations omitted). 7 Soltanian-Zadeh requests that the court take judicial notice of the allegations made by 8 plaintiff in three other cases filed in this court, including Cortinas v. Soltanian (Soltanian), Case 9 No. 2:20-cv-1067 DAD JDP (E.D. Cal.). ECF No. 33-2. Soltanian is the only case of the three 10 that includes allegations against Soltainian-Zadeh (see id. at 5-44) and is therefore the only case 11 relevant to whether plaintiff’s claims against Soltanian-Zadeh in this case are duplicative. None 12 of the allegations Soltanian-Zadeh requests the court take notice of are relevant to whether 13 plaintiff sufficiently pled his claims in this case. Accordingly, the request for judicial notice will 14 be granted to the extent the court takes notice of the complaint in Soltanian and is otherwise 15 denied. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 16 (9th Cir. 2006) (declining to take judicial notice of reports that were not relevant to the resolution 17 of the appeal). 18 Bobbala requests that the court take judicial notice of the first amended complaint in 19 Cortinas v. McCabe (McCabe), Case No. 1:16-cv-0558 LJO MJS (E.D. Cal.); the docket and 20 various filings in Cortinas v. Gill (Gill), Case No. 1:18-cv-0515 DAD HBK (E.D. Cal.), including 21 a copy of the settlement agreement in McCabe; the complaint and docket in Cortinas v. Arya, No. 22 34-2021-00312837 (Sacramento Cnty. Super. Ct.); and Bobbala’s May 15, 2020 response to 23 health care appeal No. SAC HC 20000199. ECF No. 39-2. The request for judicial notice will be 24 granted as to the filings in McCabe and Gill, which relate to defendant’s arguments that the 25 settlement agreement in McCabe bars plaintiff’s claims against her. 26 With respect to the state court proceedings, Bobbala’s motion indicates that the claims in 27 that action are the same as those presented here and states that she reserves the right to seek a stay 28 of this action based on the Colorado River doctrine. ECF No. 39 at 3-4 & n.1 (citing Colo. River 1 Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976); R.R. St. & Co. Inc. v. 2 Transp. Ins. Co., 656 F.3d 966 (9th Cir. 2011)). However, the state proceedings are irrelevant to 3 the grounds on which Bobbala seeks to dismiss the claims against her. Moreover, plaintiff states 4 in his opposition that he dismissed his state court action on December 13, 2022 (ECF No. 44 at 5 1), and Bobbala does not contest this assertion. The request for judicial notice will therefore be 6 denied as to the state court complaint and docket because they are not relevant to the motion. See 7 Santa Monica Food Not Bombs, 450 F.3d at 1025 n.2 8 As for Bobbala’s response to plaintiff’s appeal, defendant argues that the court may take 9 judicial notice of the document because it is referenced in the complaint and judicial notice of 10 inmate grievances related to the proceedings is appropriate. ECF No. 39-1 at 2. However, while 11 plaintiff does reference the response in the complaint and the document may be the proper subject 12 of judicial notice, it is the summary of plaintiff’s treatment within the response that Bobbala relies 13 on in her motion to argue that plaintiff fails to state a claim for deliberate indifference. ECF No. 14 39 at 8-10. The fact that plaintiff referenced the appeal response does not mean that he intended 15 to adopt the statements contained therein as true, nor is a grievance response summarizing 16 plaintiff’s medical records sufficient to establish the medical treatment plaintiff received. 17 Accordingly, it is not proper to take judicial notice of the appeal for the truth of the asserted facts 18 it contains and the request for judicial notice will be denied as to Bobbala’s grievance response. 19 See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“Just because the 20 document itself is susceptible to judicial notice does not mean that every assertion of fact within 21 that document is judicially noticeable for its truth.”). 22 C. Deliberate Indifference 23 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 24 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 25 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 26 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 27 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 28 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 1 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 2 Deliberate indifference is a very strict standard. It is “more than mere negligence.” 3 Farmer v. Brennan, 511 U.S. 825, 835 (1994). Even civil recklessness—failure “to act in the face 4 of an unjustifiably high risk of harm that is either known or so obvious that it should be 5 known”—is insufficient to establish an Eighth Amendment claim. Id. at 836-37 (citation 6 omitted). A prison official will be found liable under the Eighth Amendment when “the official 7 knows of and disregards an excessive risk to inmate health or safety; the official must both be 8 aware of facts from which the inference could be drawn that a substantial risk of serious harm 9 exists, and he must also draw the inference.” Id. at 837. A plaintiff can establish deliberate 10 indifference “by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 11 medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 12 974 F.2d at 1060). 13 Deliberate indifference “may appear when prison officials deny, delay or intentionally 14 interfere with medical treatment, or it may be shown by the way in which prison physicians 15 provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing 16 Estelle, 429 U.S. at 104-05). However, a difference of opinion between an inmate and prison 17 medical personnel—or between medical professionals—regarding the appropriate course of 18 treatment does not by itself amount to deliberate indifference to serious medical needs. Toguchi 19 v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 20 1989). To establish that a difference of opinion rises to the level of deliberate indifference, 21 plaintiff “must show that the chosen course of treatment ‘was medically unacceptable under the 22 circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the prisoner’s] 23 health.’” Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 24 1996)). 25 D. Discussion 26 i. Defendant Soltanian-Zadeh’s Motion 27 Defendant Soltanian-Zadeh moves to dismiss the claims against him on the grounds that 28 the claims are duplicative of those plaintiff is pursuing in Soltanian, Case No. 2:20-cv-1067 DAD 1 JDP, and that plaintiff has failed to state any cognizable claims for relief. ECF No. 33-1. 2 Plaintiff opposes the motion and argues that the conduct alleged in the instant action is separate 3 from that alleged in his other action and that defendant cannot avoid liability for subsequent 4 violative conduct because he is already being sued in relation to other, similar conduct. ECF No. 5 37. 6 a. Duplicative Claims 7 In Soltanian, plaintiff alleged that on December 3, 2019, Soltanian-Zadeh threatened to 8 stop all of plaintiff’s medical care unless he dismissed his civil litigation, and followed through 9 with the threat on December 3, 2019, January 5, 2020, and April 19, 2020. ECF No. 33-2 at 8, 10 11, 13-14. The alleged retaliation included cancelling plaintiff’s pain medication and methadone; 11 taking plaintiff’s cane, walker, cervical and wedge pillow, and neck brace; and putting plaintiff in 12 a wheelchair under threat of suicide watch if he refused. Id. at 8, 13-14. Plaintiff alleged that he 13 had been completely denied pain medication since April 19, 2020, including tramadol, which he 14 was supposed to be receiving according to an April 22, 2020 appeal response from Sahota and 15 Gates and a May 15, 2020 response from Bobbala. Id. at 14. 16 The undersigned finds that plaintiff’s claims in this action that Soltanian-Zadeh has 17 continuously refused to provide pain medication, including refusal to comply with a May 15, 18 2020 appeal decision stating he was supposed to be receiving tramadol, in retaliation for pursuing 19 civil litigation (ECF No. 1 at 6), are duplicative of the claims in Soltanian and should be 20 dismissed as such. See M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir. 2012) (“[A] 21 district court has broad discretion to control its own docket, and that includes the power to 22 dismiss duplicative claims.” (citation omitted)). To the extent plaintiff may be attempting to 23 allege additional incidents of Soltanian-Zadeh denying pain medication outside those alleged in 24 Soltanian, the facts alleged in the complaint are insufficient to demonstrate that the alleged 25 denials are separate from those alleged in Soltanian. 26 However, plaintiff’s allegations related to Soltanian-Zadeh’s determination that he 27 required medication assisted treatment and subsequent retaliatory cancellation of plaintiff’s 28 appointment are not duplicative of the allegations in Soltanian, as these allegations concern a 1 specific, discrete incident that occurred after the filing of the complaint in Soltanian. Although it 2 appears that plaintiff may have been able to properly seek leave to supplement the complaint in 3 Soltanian with these allegations, see Fed. R. Civ. P. 15(d) (the court may permit “a supplemental 4 pleading setting out any transaction, occurrence, or event that happened after the date of the 5 pleading to be supplemented”), and such supplementation may have been more efficient, there is 6 no requirement that plaintiff seek leave to file a supplemental pleading instead of filing a separate 7 action. 8 b. Failure to State a Claim 9 Soltanian-Zadeh also argues that the claims against him should be dismissed for failure to 10 state a claim because they “are largely erratic and contradictory,” fail to establish either the 11 objective or subjective elements of deliberate indifference, and fail to sufficiently allege 12 Soltanian-Zadeh’s conduct was retaliatory. ECF No. 33-1 at 6-8. He argues that the allegations 13 amount to no more than a difference of opinion as to proper treatment and demonstrate that 14 plaintiff received care and “had the advantage of a team of medical professionals assessing his 15 medical needs.” Id. at 6-7. 16 Because the undersigned has found that plaintiff’s First and Eighth Amendment claims 17 regarding the retaliatory denial of pain medication should be dismissed as duplicative, only the 18 sufficiency of plaintiff’s remaining claims will be addressed. As the undersigned already found 19 in screening the complaint, plaintiff has alleged sufficient facts to state claims for deliberate 20 indifference and retaliation against defendant Soltanian-Zadeh based on the denial of medication 21 assisted treatment. The complaint alleges that on July 10, 2020, Soltanian-Zadeh determined that 22 plaintiff required medication assisted treatment for his abuse of heroin and scheduled an 23 appointment for said treatment. ECF No. 1 at 4. During plaintiff’s appointment with Soltanian- 24 Zadeh he asked defendant why he would not treat him, and defendant responded that he would 25 not treat plaintiff unless plaintiff dismissed his litigation against the medical department. Id. 26 Subsequent to the appointment, Soltanian-Zadeh cancelled the August 9, 2020 medication 27 assisted treatment appointment. Id. 28 On these facts, plaintiff has clearly alleged that Soltanian-Zadeh determined that plaintiff 1 required treatment, even going so far as to schedule the necessary treatment, and then cancelled it 2 when plaintiff did not dismiss his civil litigation. There is nothing contradictory about these 3 facts.1 Furthermore, that plaintiff was sent to the hospital in February 2021 after breaking an 4 injection needle in his arm while using heroin and was eventually scheduled to see an addiction 5 physician in April 2021 does not negate plaintiff’s claim that Soltanian-Zadeh was deliberately 6 indifferent when he cancelled plaintiff’s August 2020 appointment for addiction treatment. 7 Plaintiff has therefore sufficiently stated First and Eighth Amendment claims against Soltanian- 8 Zadeh based on the denial of medication assisted treatment and the motion to dismiss should be 9 denied as to these claims. 10 ii. Defendant Bobbala’s Motion 11 Defendant Bobbala moves to dismiss the claims against her on the grounds that plaintiff 12 has failed to state any cognizable claims for relief and the claims are barred by the settlement 13 agreement in McCabe, Case No. 1:16-cv-0558 LJO MJS. ECF No. 39. Plaintiff opposes the 14 motion and argues that his claims are not barred by the settlement agreement because this case 15 involves the treatment of pain from injuries that did not exist at the time of the agreement. ECF 16 No. 44. 17 a. Failure to State a Claim 18 Defendant Bobbala argues that plaintiff has not alleged sufficient facts to state a claim for 19 deliberate indifference because his allegations are based solely on her supervisory role in the 20 appeals process and are vague and contradictory. ECF No. 39 at 6-10. She asserts that the 21 complaint is contradictory because plaintiff alleges both that she allowed him to suffer in pain 22 despite his multiple requests for treatment and that she provided pain relief after he dismissed her 23 from another case. Id. at 7. Bobbala further argues that plaintiff cannot state a claim against her 24 ////

25 1 Soltanian-Zadeh’s argument that plaintiff’s allegations are contradictory appears largely 26 directed at the alleged denial of pain medication. The complaint does not provide an entirely clear chronology of events, and the alleged conduct covers multiple defendants and appears to 27 span an approximately one-year period. Despite some resulting ambiguity as to details, the court does not find any fatal inconsistency when the complaint is construed with the liberality afforded 28 to pro se litigants. 1 based solely on her supervisory position or the fact that she reviewed or denied his grievances. 2 Id. at 7-9. 3 Considering that plaintiff’s allegations cover a span of approximately one year, the fact 4 that he alleges that Bobbala eventually provided him with pain relief after he dismissed her from 5 litigation2 does not contradict his claims that she initially refused to do so. Furthermore, as found 6 when the court screened the complaint, plaintiff has alleged sufficient facts to state a claim for 7 deliberate indifference against Bobbala. Although it is true that the prison grievance procedure 8 does not confer any substantive constitutional rights upon inmates, and actions in reviewing and 9 denying inmate appeals generally do not serve as a basis for liability under § 1983, see Ramirez v. 10 Galaza, 334 F.3d 850, 860 (9th Cir. 2003), prison administrators cannot willfully turn a blind eye 11 to constitutional violations being committed by subordinates. Accordingly, an individual who 12 denies an inmate appeal and who had the authority and opportunity to prevent an ongoing 13 constitutional violation can be subject to liability if the individual knew about an existing or 14 impending violation and failed to prevent it. See Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 15 2006) (prison administrators “are liable for deliberate indifference when they knowingly fail to 16 respond to an inmate’s requests for help” (citations omitted)). 17 In this case, when liberally construed, the complaint alleges facts sufficient to show that 18 Bobbala signed off on a grievance response affirming that plaintiff should be receiving pain 19 treatment, including tramadol, and then failed to intervene, despite her ability and authority to do 20 so, when plaintiff subsequently notified her on multiple occasions that he was not receiving any 21 treatment for his pain. See ECF No. 1 at 5-6. These allegations are sufficient to state a claim at 22 the pleading stage and Bobbala’s motion to dismiss should be denied on this ground. 23 b. Settlement Agreement 24 Defendant Bobbala also argues that plaintiff’s claims against her are barred by the 25 settlement agreement in McCabe even though she was not named as a defendant in McCabe and 26 2 Plaintiff alleges that Bobbala provided him pain relief after he dismissed her from case 2:20-cv- 27 1067. ECF No. 1 at 5. The docket in that case reflects that plaintiff moved to voluntarily dismiss Bobbala on March 3, 2021, and the voluntary dismissal was granted on August 31, 2021. 28 Soltanian, ECF Nos. 43, 57. 1 the claims against her are based on events that took place after the settlement agreement was 2 executed. ECF No. 39 at 10-11. She argues that Gill, Case No. 1:18-cv-0515 DAD HBK, in 3 which the court found the settlement agreement barred claims against defendants not named in 4 McCabe for conduct that occurred after plaintiff signed the settlement agreement, “is squarely on 5 point.” Id. Plaintiff argues that the settlement agreement in McCabe does not bar his claims in 6 this action because he was assaulted by correctional officers after he signed the settlement 7 agreement, resulting in new injuries to his cervical and lumbar spine for which he now requires 8 treatment that is being denied. ECF No. 44 at 1. 9 The agreement in McCabe covered “all of the claims and allegations in the Complaint and 10 any amendments thereto against Defendants, whether named or unnamed and whether served or 11 unserved, and any past or current employees of CDCR.” ECF No. 39-1 at 39. It provided, in 12 relevant part, that “[b]y signing this Agreement, Plaintiff releases CDCR, Defendants, whether 13 named or unnamed and whether served or unserved, and any other past or current CDCR 14 employees from all claims, past, present and future, known or unknown, that arise or could arise 15 from the facts alleged in the Complaint.” Id. at 40. The amended complaint in McCabe alleged 16 that in March 2015, the pain management committee stopped plaintiff’s pain medication because 17 he followed the Islamic faith and caused him to suffer from extreme pain over the following year. 18 Id. at 70-71. The committee told him that “[w]e do not treat Muslims. What a mess a mentally ill 19 Muslim. Who wants to be treated humanely.” Id. at 71. Prior to that, plaintiff had been 20 receiving Tylenol 3 and gabapentin. Id. In June 2015, the defendants began prescribing 21 gabapentin again because they believed plaintiff had stopped practicing Islam and in February 22 and March 2016 prescribed methadone for the same reason.3 Id. at 73. 23 Contrary to Bobbala’s assertion, the decision in Gill is not “squarely on point.” The 24 complaint in Gill was filed about two and a half weeks after plaintiff signed the settlement 25 agreement in McCabe, and the conduct alleged overlapped considerably with that alleged in 26 McCabe in terms of both the specific conduct alleged and the timeframe during which it 27 3 The complaint also included a claim for excessive use of force and failure to provide treatment 28 after the use of force that are not relevant here. ECF No. 39-1 at 71-72. 1 occurred.4 See id. at 6-20 (original and amended complaint in Gill), 42 (signature page of 2 settlement agreement), 66-74 (complaint in McCabe). In contrast, the complaint in this case was 3 filed approximately three years after the settlement agreement was signed and alleges violations 4 that took place both at a different prison and several years after those alleged in McCabe. See 5 ECF No. 1 at 7. Furthermore, while the instant complaint does allege a failure to provide pain 6 medication for damage to plaintiff’s cervical and lumbar spine, that similarity alone is not 7 sufficient to demonstrate that the claims arise from the facts alleged in the complaint in McCabe, 8 particularly in light of plaintiff’s assertion that he has suffered additional injuries to his spine that 9 require treatment. Accordingly, the undersigned finds that the settlement agreement in McCabe 10 does not bar this action. 11 E. Conclusion 12 For the reasons set forth above, the undersigned finds that defendant Soltanian-Zadeh’s 13 motion to dismiss should be granted as to plaintiff’s First and Eighth Amendment claims 14 regarding the retaliatory denial of pain medication and otherwise denied. Defendant Bobbala’s 15 motion to dismiss should be denied in its entirety. 16 IV. Discovery 17 Plaintiff has filed motions seeking to compel defendants Bobbala, Gates, and Lynch to 18 respond to discovery requests (ECF Nos. 46, 48, 50) and defendants Gates, Lynch, and Sahota 19 have moved for an extension of time to respond to discovery requests (ECF No. 49). However, a 20 Discovery and Scheduling Order has yet to be entered in this case, making any discovery requests 21 and motions to compel premature. Although Gates, Lynch, and Sahota have answered the 22 complaint, Bobbala and Soltanian-Zadeh have not. Upon resolution of the pending motions to 23 dismiss and once all remaining defendants have answered the complaint, an order setting the 24 4 Relevant to the issues here, the original and first amended complaints in Gill alleged that 25 plaintiff was denied treatment for his cervical and lumbar disc related pain because of his mental 26 illness beginning sometime in 2015 and continuing through 2016 when he was finally provided Tylenol 3 and methadone. ECF No. 39-1 at 9-12 (allegations in original complaint), 17-19 27 (allegations in first amended complaint). Beginning in May 2016, plaintiff was denied baclofen for his pain and in May 2017, all pain treatment was once again stopped until he was approved for 28 epidural injections in December 2017. Id. 1 schedule for discovery and dispositive motions will issue, at which point plaintiff may seek 2 discovery from defendants. The order will also include a deadline for defendants to respond to 3 any prematurely served discovery requests. Plaintiff’s motions to compel will therefore be denied 4 as premature, and Gates, Lynch, and Sahota’s motion for an extension of time to respond to 5 discovery will be denied as unnecessary. 6 V. Plain Language Summary of this Order for a Pro Se Litigant 7 It is being recommended that defendant Soltanian-Zadeh’s motion to dismiss be granted 8 as to your First and Eighth Amendment claims that he denied you pain medication in retaliation 9 for filing lawsuits because this claim is already being pursued in Cortinas v. Soltanian, No. 2:20- 10 cv-1067 DAD JDP (E.D. Cal.). It is being recommended that the motion be denied as to your 11 First and Eighth Amendment claims that Soltanian-Zadeh denied you medication assisted 12 treatment in retaliation for filing lawsuits. It is being recommended that defendant Bobbala’s 13 motion to dismiss be denied completely. 14 Your motions to compel discovery are being denied as premature because the court has 15 not yet set a schedule for discovery. Once a discovery and scheduling order issues, you may 16 begin requesting discovery from defendants. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Defendant Soltanian-Zadeh’s request for judicial notice (ECF No. 33-2) is GRANTED 19 in part and DENIED in part. The request is GRANTED to the extent the court takes judicial 20 notice of the complaint in Cortinas v. Soltanian, No. 2:20-cv-1067 DAD JDP (E.D. Cal.), and is 21 otherwise DENIED. 22 2. Defendant Bobbala’s request for judicial notice (ECF No. 39-1) is GRANTED in part 23 and DENIED in part. The request is GRANTED to the extent the court takes judicial notice of 24 the documents submitted pertaining to Cortinas v. McCabe, No. 1:16-cv-0558 LJO MJS (E.D. 25 Cal.), and Cortinas v. Gill, No. 1:18-cv-0515 DAD HBK (E.D. Cal.), and is otherwise DENIED. 26 3. Plaintiff’s motions to compel (ECF Nos. 46, 48, 50) are DENIED as premature. 27 4. Defendants Gates, Lynch, and Sahota’s motion for an extension of time (ECF No. 49) 28 is DENIED as unnecessary. 1 IT IS FURTHER RECOMMENDED that: 2 1. Defendant Soltanian-Zadeh’s motion to dismiss (ECF No. 33) be GRANTED in part 3 || and DENIED 1n part as follows: 4 a. GRANTED as to plaintiffs First and Eighth Amendment claims regarding the 5 retaliatory denial of pain medication on the ground that they are duplicative of his 6 claims in Cortinas v. Soltanian, No. 2:20-cv-1067 DAD JDP (E.D. Cal.); 7 b. DENIED on all other grounds; and 8 c. The complaint should proceed against Soltanian-Zadeh on plaintiffs First and 9 Eighth Amendment claims based on the retaliatory denial of medication assisted 10 treatment. 11 2. Defendant Bobbala’s motion to dismiss (ECF No. 39) be DENIED. 12 3. Defendants Soltanian-Zadeh and Bobbala be required to answer the complaint within 13 || twenty-one days of any order adopting these findings and recommendations as to their respective 14 || motion to dismiss. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 || objections shall be served and filed within fourteen days after service of the objections. The 21 || parties are advised that failure to file objections within the specified time may waive the right to 22 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 || DATED: May 23, 2023 ~ 24 Chttt0n— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 14