(PC) Gray v. Khoo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANA GRAY, No. 1:20-cv-01047-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART 14 A. KHOO, et al., (Doc. No. 28) 15 Defendants.

16 17 Plaintiff Dana Gray is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 5, 2021, the assigned magistrate judge screened plaintiff’s second amended 21 complaint and issued the pending findings and recommendations, recommending that the 22 following claims be permitted to proceed: those claims brought against defendants Mitchell, 23 Singh, Showalter, and Song for denial of plaintiff’s revision surgery in violation of the Eighth 24 Amendment; those claims brought against defendant Mitchell for directing that plaintiff’s 25 Gabapentin be terminated in violation of the Eighth Amendment; and a medical malpractice claim 26 brought against defendants Mitchell, Singh, Showalter, and Song for denial of plaintiff’s revision 27 surgery; and recommending that all other claims and defendants be dismissed due to plaintiff’s 28 failure to state a claim. (Doc. No. 28 at 22–23.) The findings and recommendations were served 1 on plaintiff and contained notice that any objections thereto were to be filed within thirty days. 2 (Id. at 23.) On January 15, 2021, plaintiff timely filed a letter of clarification in response to the 3 findings and recommendations. (Doc. No. 29.) Therein, plaintiff stated that she has no 4 objections to the findings and recommendations but sets forth fourteen corrections to her second 5 amended complaint.1 (Id.) 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 7 de novo review of this case. Having carefully reviewed the entire file, the court will adopt the 8 findings and recommendations in part, finding them to be supported by the record and by proper 9 analysis for all the claims found cognizable. For the reasons provided below, however, the court 10 declines to adopt the recommendation that plaintiff’s claim for deliberate indifference to her 11 serious medical needs with respect to the defendant’s denying her of opioid pain medication that 12 was allegedly medically appropriate be dismissed. 13 Plaintiff asserts claims against defendants Mitchell and Showalter for denial of pain 14 medication in violation of the Eighth Amendment.2 (Doc. No. 24 at 19.) Plaintiff alleges 15 between January and December 2019, she required opioid medication for “breakthrough pain” but 16 on December 27, 2019 was denied opioids by defendant Mitchell and was not given any reason 17 for that decision. (Id. at 10.) Plaintiff alleges that defendant Showalter was involved in the pain 18 ///// 19 ///// 20 1 Plaintiff was previously advised that Rule 220 of the Local Rules of the Eastern District of 21 California provides that “every pleading to which an amendment or supplement is permitted as a matter of right or has been allowed by court order shall be retyped and filed so that it is complete 22 in itself without reference to the prior or superseded pleading.” (See, e.g., Doc. No. 15 at 22.) 23 Plaintiff cannot and does not amend her complaint by submitting her corrections in a letter in response to the findings and recommendations. 24 2 In the second amended complaint, plaintiff asserts that defendants Khoo, Mitchell, and 25 Showalter were deliberately indifferent to her serious medical needs by denying her Gabapentin, and that defendants Mitchell and Showalter were also deliberately indifferent by denying her 26 what she characterized as “effective” medication for her breakthrough pain episodes. (Doc. No. 27 24 at 19.) The pending findings and recommendations recommended that this claim proceed as it relates to the denial of Gabapentin for plaintiff’s condition, but not as to opioid pain medication 28 for the “breakthrough pain.” (Doc. No. 28 at 22–23.) 1 committee decision to deny her requests to be continued on the medication.3 (Id. at 10–11.) 2 Plaintiff alleges that she was instead prescribed Toradal, which was medically contraindicated 3 due to other medications that she was taking at the time, and defendants were aware that she 4 continued to suffer from untreated pain. (Id. at 19.) At the pleading stage, the undersigned 5 concludes that these allegations are sufficient to state a claim for deliberate indifference to 6 plaintiff’s serious medical needs. 7 Accordingly, 8 1. The findings and recommendations, filed January 15, 2021, is adopted in 9 part; 10 2. This action shall proceed on the second amended complaint, filed 11 December 21, 2020, on plaintiff’s claims against defendants R. Mitchell, I. 12 Singh, B. Showalter, and G. Song for denial of plaintiff’s revision surgery; 13 a claim against defendant Mitchell for directing that her Gabapentin be 14 terminated in violation of the Eighth Amendment; claims against 15 defendants Mitchell and Showalter for denial of pain medication in 16 violation of the Eighth Amendment; and medical malpractice claims 17 against defendants Mitchell, Singh, Showalter, and Song for denial of her 18 revision surgery; 19

20 3 As the pending findings and recommendations note, plaintiff alleged in her first amended complaint that defendant Showalter was deliberately indifferent “by telling the pain committee that 21 she had fallen and that she used recreational drugs in prison to have them deny her request for opioid pain medication . . . .” (Doc. No. 28 at 19.) “Suspicions of malingering may also be considered 22 an indication of an ulterior motive whereby a defendant failed to take a plaintiff’s condition 23 seriously and thus acted recklessly in failing to provide proper care.” George v. Sonoma Cty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 937–38 (N.D. Cal. 2010) (citing Thomas v. Arevalo, No. 95 24 CIV. 4704(SS), 1998 WL 427623, at *9 (S.D.N.Y. July 28, 1998) (“There is evidence sufficient to support an inference that the State Defendants and defendant Kalnins considered plaintiff a 25 possible malingerer. A reasonable jury could infer that defendants had a motive for failing to take plaintiff’s complaints seriously based on this characterization.”) (internal citations omitted)); see 26 also Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (“The fact that Nurse Dunbar and 27 Dr. Benjamin may have based their refusal to treat Walker’s pain on a good-faith belief that he was malingering, that he was not in pain but was merely trying to get high with the narcotic 28 painkiller, is an issue for the jury.”)) 1 4. All other claims are dismissed from this action for failure to state a claim; 2 and 3 5. This action is referred back to the magistrate judge for proceedings 4 consistent with this order. 5 | IT IS SO ORDERED. a . 6 Li. wh F Dated: _ February 12, 2021 Sea 1" S098 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28