(PC) Shockner v. Soltanian

Opinion

MANFRED SHOCKNER, No. 2: 18-cv-1948 TLN KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS DR. SOLTANIAN, et al., Defendants. I. Introduction Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendant Soltanian-Zadeh1 (ECF No. 79) and defendants Vaughn and Smith (ECF No. 80). Also pending is plaintiff’s motion for summary judgment. (ECF No. 87.) For the reasons stated herein, the undersigned recommends that defendants’ motions to dismiss and plaintiff’s summary judgment motion be denied. The undersigned also herein denies plaintiff’s motion for subpoenas (ECF No. 78) and grants defendant Soltanian-Zadeh’s motion to 1 Plaintiff refers to defendant Soltanian-Zadeh as defendant Soltanian. However, defendant’s motion to dismiss identifies this defendant as defendant Soltanian-Zadeh. (ECF No. 79.) Accordingly, these findings and recommendations refer to this defendant as defendant Soltanian- Zadeh. strike (ECF No. 96.) II. Legal Standard for 12(b)(6) Motion A complaint may be dismissed for “failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant’s motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003). III. Plaintiff’s Claims This action proceeds on plaintiff’s second amended complaint filed December 26, 2018, against defendants Dr. Soltanian-Zadeh, Dr. Smith and Dr. Vaughn. (ECF No. 17.) Defendants are employed at Mule Creek State Prison (“MCSP”). Plaintiff alleges that he is 77 years old and suffers from several medical conditions, some of which cause him to suffer severe pain. (Id. at 2-3.) Plaintiff describes these conditions as 1) leukocytosis, probably pseudomembranous colitis; 2) left femoral vein deep venous thrombosis; 3) status post right total hip replacement; 4) severe tricompartmental degenerative knee disease; 5) hypertension; 6) chronic obstructive pulmonary disease; 7) history of ulcerative colitis; 8) C.O.P.D.; and 9) left knee has complex medial and lateral meniscal tear, full thickness tear of ACL and partial tear of collateral ligament and mild effusion with synovitis. (Id. at 2-3.) Plaintiff alleges that Dr. Ahmed at Mercy Hospital noted that plaintiff’s mesalamine dose was somehow reduced from 1200 mg to 400 mg. (Id. at 3.) Dr. Ahmed restarted plaintiff at 1200 mg. 3 times per day. (Id.) Plaintiff’s pain medication was 12.5 mg. of methadone and Tylenol # 3. (Id.) Plaintiff alleges that because of his extreme conditions, he was put on the Disability Placement Program (“DPP”) for mobility impaired inmates. (Id.) Plaintiff alleges that he had the following comprehensive accommodation chronos: ground floor housing, bottom bunk housing, wrist splints, a single point cane, a mobility impaired garment, an extra mattress, extra pillow, physical limitations to job assignments based on terrain level, no climbing and no lifting greater than 20 pounds, an accommodation noting it was difficult for plaintiff to get down on the ground for code responses, and plaintiff must wear mobility vest and carry his chrono. (Id.) //// //// //// //// Plaintiff alleges that his severe pain has been constant and alleviated by specific medications prescribed at previous prisons. (Id.) Plaintiff alleges that upon arriving at MCSP, plaintiff’s pain medications were stopped. (Id.) Plaintiff alleges that his physical conditions that caused the pain did not stop, so his pain still existed. (Id.) Plaintiff alleges that defendant Soltanian-Zadeh made the decision to discontinue his previously prescribed pain medication, i.e., methadone. (Id.) Plaintiff alleges that defendant Soltanian-Zadeh denied his pain medication, stating, “CDCR is not responsible to treat you for anything except to allow you to eat, shit and take care of yourself.” (Id. at 4.) Plaintiff alleges that defendant Smith approved defendant Soltanian-Zadeh’s decision to discontinue plaintiff’s pain medication when he signed plaintiff’s grievance. (Id. at 3.) Plaintiff alleges that he was moved to a different yard (E Yard) and assigned defendant Vaughn as his new Primary Care Physician (“PCP”). (Id. at 4.) Plaintiff alleges that at his previous yard, i.e., MCSP C-yard, plaintiff purchased an orthopedic mattress with his own money. (Id.) Plaintiff alleges that when he transferred to E yard, plaintiff was not allowed to have his orthopedic mattress. (Id. at 4-5.) Plaintiff alleges that the mattress is being held in Receiving and Release (“R & R”). (Id. at 5.) Plaintiff alleges that correctional officers told him that he needed a chrono from his PCP in order to receive the mattress. (Id.) Plaintiff alleges that defendant Vaughn repeatedly denied his requests for a chrono to receive his mattress. (Id.) Plaintiff alleges that, in a separate appeal, defendant Smith approved defendant Vaughn’s decision to replace plaintiff’s methadone with Tylenol and defendant Vaughn’s decision not to re- new his chrono for the orthopedic mattress. (Id.) The undersigned finds that plaintiff’s second amended complaint raises the following claims. Plaintiff alleges that defendants Soltanian-Zadeh, Smith and Vaughn violated the Eighth Amendment by discontinuing plaintiff’s methadone. Plaintiff alleges that defendants Smith and Vaughn violated the Eighth Amendment by denying plaintiff’s request for a chrono authorizing plaintiff to have his orthopedic mattress in his cell. //// //// IV. Motion to Dismiss by Defendants Vaughn and Smith (ECF No. 80) A. Is Plaintiff’s Eighth Amendment Claim Alleging that Defendant Smith Approved Defendant Soltanian-Zadeh’s Decision to Discontinue Pain Medication Barred by the Statute of Limitations? Legal Standards “A claim may be dismissed [for failing to state a claim] on the ground that it is barred by the applicable statute of limitations only when ‘the running of the statute is apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). “However, Rule 12(b)(6) also permits consideration of any matters of which judicial notice may be taken, and any exhibits attached to the complaint.” Guerra v. Janda, 2014 WL 4385689, at *9 (S.D. Cal. Jul. 22, 2014) (citing United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). Section 1983 does not contain its own limitations period. The appropriate period is that of the forum state’s statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 276 (1985), superseded by statute on other grounds as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 377-78 (2004); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). In California, the general residual statute of limitations for personal injury actions is the two-year period set forth at section 335.1 of the California Civil Procedure Code, and this is the applicable state statute in § 1983 actions. Barrett v. Berry, 2020 WL 5816224, at *7 (N.D. Cal. Sept. 30, 2020). California Civil Procedure Code section 352.1 recognizes imprisonment as a disability that tolls the statute of limitations when a person is “imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term of less than for life.” Cal. Civ. Proc. Code § 352.1(a). Id. at *7 n.4. The tolling is not indefinite, however; the disability of imprisonment delays the accrual of the cause of action for a maximum of two years. Id., citing Cal. Civ. Proc. Code § 352.1(a). The statute of limitations is tolled for the time it takes for a prisoner to administratively exhaust his underlying grievances. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) (“the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process”). Discussion In the motion to dismiss, defendants first argue that because plaintiff is serving a sentence of life without the possibility of parole, plaintiff is not entitled to tolling pursuant to California Civil Procedure Code § 352.1. In support of this argument, defendants request that the court take judicial notice of plaintiff’s abstract of judgment. (ECF No. 80-2 at 109-10.) The undersigned takes judicial notice of plaintiff’s abstract of judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (the court may take judicial notice of facts that are not subject to reasonable dispute); Fed. R. Evid. 201(b)(2). Plaintiff’s abstract of judgment reflects that plaintiff was sentenced to life with the possibility of parole, and not life without the possibility of parole. (ECF No. 80-2 at 109.) An inmate serving a term of life with the possibility of parole is entitled to tolling pursuant to § 352.1. Brown v. County of Los Angeles, 830 Fed.Appx. 231, 232-33 (9th Cir. 2020) (prisoners serving sentences less than life without the possibility of parole are entitled to § 352.1 tolling). Therefore, plaintiff is entitled to tolling pursuant to § 352.1. Thus, plaintiff had four years to bring his § 1983 claim for damages, i.e., two years pursuant to § 335.1, plus two years pursuant to § 352.1. Baros v. Ramirez, 2019 WL 3849171, at *6 (C.D. Cal. June 5, 2019). Defendants next observe that plaintiff’s complaint fails to allege any specific dates when defendant Soltanian-Zadeh stopped plaintiff’s pain prescriptions or the date of defendant Smith’s response to plaintiff’s grievance approving this decision. Defendants argue that plaintiff’s complaint incorporates by reference grievance MCSP-HC-14045841, on which his claims against defendant Smith are based.2 Defendants argue that plaintiff had two years from the May 28, 2015

2 Under the incorporation by reference doctrine, the court may consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002). The court may treat such a document as “part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” United States v. Director’s Level Decision in grievance MCSP-HC-14045841 to file a timely civil rights action. (See ECF No. 80-5 at 5.) Defendants argue that the instant action is not timely because plaintiff filed his original complaint more than two years after May 28, 2018. As discussed above, plaintiff is entitled to four years of tolling, rather than two years as argued by defendants in the motion to dismiss. Pursuant to the mailbox rule, plaintiff filed this action on April 26, 2018. (ECF No. 1 at 5.) Assuming without deciding that grievance MCSP- HC-14045841 may be incorporated by reference, plaintiff filed this action within four years of May 28, 2015. In a footnote, defendants contend that grievance MCSP-HC-13043952, attached to the Director’s Level Decision of grievance MCSP-HC-14045841 “arguably” exhausted plaintiff’s claims against defendants Soltanian-Zadeh and Smith concerning the reduction or cancellation of plaintiff’s methadone. (ECF No. 80-1 at 6 n.4.) Defendants contend that the Director’s Level Decision for grievance MCSP-HC-13043952 was issued March 13, 2014, over four years before plaintiff filed his complaint. (Id.) While the Director’s Level Decision in grievance MCSP-HC-13043952 may be attached to the Director’s Level Decision for grievance MCSP-HC-14045841, defendants are now arguing that two separate grievances exhausted plaintiff’s claims. In making this argument, defendants essentially argue that both grievances are incorporated by reference. It is not clear to the undersigned that plaintiff’s amended complaint specifically refers to both of these grievances. For this reason, and because defendants’ argument regarding grievance MCSP-HC-13043952 is not clearly raised, the undersigned recommends that defendants’ motion to dismiss the at-issue claim against defendant Smith as barred by the statute of limitations based on grievance MCSP- HC-13043952 be denied.3 Accordingly, for the reasons discussed above, the undersigned recommends that defendants’ motion to dismiss the at-issue claim against defendant Smith as barred by the statute Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 3 Defendants’ argument regarding grievance MCSP-HC-13043952 is more appropriately raised in a summary judgment motion. of limitations be denied. B. Did Plaintiff Fail to State a Potentially Colorable Eighth Amendment Claim Against Defendant Smith Based Upon his Supervisory Approval of Defendant Vaughn’s Discontinuation of Methadone and Denial of a Mattress Chrono? As discussed above, plaintiff alleges that defendant Smith violated the Eighth Amendment when, in a separate appeal, he approved defendant Vaughn’s decisions to discontinue plaintiff’s methadone and to deny plaintiff’s mattress chrono. Defendants argue that by relying on defendant Smith’s supervisory role, rather than any specific action, plaintiff fails to state a claim upon which relief may be granted. Citing Iqbal, 566 U.S. at 675-76, defendants argue that there is no vicarious liability for supervisors in § 1983 lawsuits. Defendants argue that a supervisor, like any other official, may be found liable for only his own unconstitutional conduct. Citing Peralta v. Dillard, 744 F.3d 1076, 1086-87 (9th Cir. 2014), defendants argue that the requisite knowledge for deliberate indifference is lacking, for instance, when a supervisor merely denies an inmate’s second-level grievance concerning medical care, where the supervisor did not participate in the inmate’s treatment, interview the inmate, or independently review the inmate’s records.4 ////

4 In Peralta, the plaintiff alleged inadequate dental care. In relevant part, the Ninth Circuit considered whether the district court erred in granting directed verdicts to supervisory defendant Chief Medical Officer Fitter. Id. at 1081. The Ninth Circuit found that defendant Fitter’s signature on plaintiff’s administrative appeal did not mean he knew about plaintiff’s complaints. Id. at 1086. The Ninth Circuit found that although defendant Fitter supervised the dental department, he was not a dentist and did not independently review the plaintiff’s claims or read his chart before signing off on the grievance. Id. Instead, defendant Fitter relied on the medical opinions of the staff dentists who had investigated plaintiff’s complaints and already signed off on the treatment plan. Id. The Ninth Circuit noted that defendant Fitter understood his role to be largely administrative, not second-guessing staff dentists’ judgments. Id. Based on this evidence, the Ninth Circuit found that the district court properly entered a directed verdict as to defendant Fitter. The instant case can be distinguished from Peralta in that the undersigned is considering a motion to dismiss, rather than evidence presented at a trial. In addition, plaintiff alleges that defendant Smith, a medical doctor, approved a decision made by another medical doctor, defendant Vaughn. Thus, it appears that defendant Smith’s role in reviewing plaintiff’s grievance was more than merely administrative. The issue of defendant Smith’s role in the review of plaintiff’s grievance is better addressed in a summary judgment motion. District courts are divided on whether a medically trained supervisor who learns about alleged unconstitutional behavior from a prisoner’s grievance and fails to intervene is personally involved in the constitutional violation. Nicholson v. Finander, 2014 WL 1407828, *7 (C.D. Cal. April 11, 2014). Some district courts have reasoned that no constitutional claim of any sort may be based upon the administrative appeals process. Id. (cases cited therein). Other cases have held that a grievance appeal reviewer who fails to remedy a denial of adequate medical care personally participates in the alleged deprivation. Id. (cases cited therein). The undersigned agrees with the cases holding that a medically trained supervisor who learns about an unconstitutional denial of adequate medical care from a prisoner’s grievance and fails to intervene may be found to have personally participated in the Eighth Amendment violations. For this reason, the undersigned finds that plaintiff’s at-issue claims against defendant Smith, whom plaintiff identifies as a medical doctor, are potentially colorable. Accordingly, defendants’ motion to dismiss these claims against defendant Smith on the grounds discussed above should be denied. C. Did Plaintiff Plead Sufficient Facts in Support of His Claims Alleging that Defendants Smith and Vaughn Acted with Deliberate Indifference When Replacing Plaintiff’s Pain Medication with Tylenol and Deciding Not to Renew the Mattress Chrono? Legal Standard Deliberate indifference to serious medical needs violates the Eighth Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of a “deliberate indifference” claim involves an examination of two elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. Id. at 1059. A serious medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment, the presence of a medical condition that significantly affects an individual's daily activities, or the existence of chronic and substantial pain are examples of indications that a prisoner has a serious need for medical treatment. Id. at 1059-60. A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” but “must also draw the inference.” Id. If a prison official should have been aware of the risk, but did not actually know, the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). “Typically, a difference of opinion between a physician and the prisoner — or between medical professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) (citations, quotations and brackets omitted). “But that is true only if the dueling opinions are medically acceptable under the circumstances.” Id. (citation omitted). Discussion—Alleged Denial of Pain Medication Defendants move to dismiss plaintiff’s claim that that they violated the Eighth Amendment by discontinuing plaintiff’s methadone on the grounds that they did not act with deliberate indifference. Defendants argue plaintiff failed to plead facts showing that the decision to replace methadone with Tylenol was “medically unacceptable.” Defendants argue that one type of pain medication was simply replaced with another and that plaintiff offers no details concerning his physical reaction to these different courses of treatment. In the second amended complaint, plaintiff alleges that defendants discontinued methadone, which had been prescribed at “previous prisons” and effectively treated his severe pain, and substituted it with Tylenol, which did not treat his pain. Based on these allegations, the undersigned cannot find that the decision to discontinue methadone was medically acceptable. See Edmo v. Corizon, Inc., 935 F.3d at 793 (continuation with “ineffective treatment plan” constituted deliberate indifference); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (reversing grant of summary judgment for prison officials who allegedly were aware that the loss of plaintiff's dentures was causing him severe pain, bleeding gums and inability to eat properly, yet failed to take any action to relieve his pain or to prescribe a soft food diet until new dentures could be fitted); McElligott v. Foley, 182 F.3d 1248, 1257–58 (11th Cir. 1999) (summary judgment inappropriate under Eighth Amendment standards, where jail doctor prescribed only ineffective medication for inmate’s increasingly severe symptoms of severe stomach pain and cramps, vomiting and inability to eat); Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) (“A jury could infer deliberate indifference from the fact that [the defendant medical provider] knew the extent of [plaintiff's] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [plaintiff's] situation.”) (quoted with approval in Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006); quotations omitted); Fellows v. Baca, 2013 WL 12238537, at *11 (C.D. Cal. June 27, 2013), adopted, 2013 WL 12238844 (C.D. Cal. Aug. 14, 2013) (under Eighth Amendment standards, continuing to prescribe only largely ineffective pain medication for inmate’s “persisting complaints” of abdominal pain could show deliberate indifference to inmate's kidney stones); Chess v. Dovey, 2011 WL 567375, at *21 (E.D. Cal. Feb. 15, 2011), adopted, 2011 WL 1219268, E.D. Cal., Mar. 30, 2011) (denying summary judgment on Eighth Amendment claim where doctor “ignored plaintiff’s complaint about the ineffective nature of the Tylenol, aspirin and other medications he was being given and the pain being suffered as a result.”). In support of the motion to dismiss, defendants cite three district court cases granting motions to dismiss where the plaintiffs alleged inadequate pain medication. As discussed herein, the operative complaints in these cases apparently contained information regarding the defendants’ decisions to change the pain medication. Based on this information, the district courts were able to conclude that the defendants did not act with deliberate indifference. The undersigned discusses these cases herein. In Mize v. Kiernan, 2017 WL 3141266 (E.D. Cal. July 24, 2016), adopted September 5, 2017, the district court granted defendants’ motion to dismiss plaintiff’s Eighth Amendment claim alleging inadequate pain medication. In Mize, the court found that the defendants did not act with deliberate indifference in denying the plaintiff’s request for narcotic pain medication because this treatment, which differed from that of his prior physicians, reflected a difference of opinion as to one course of treatment over another. 2017 WL 3141266, at *3. In addition, the Pain Management Committee’s conclusion that narcotics were not clinically indicated for plaintiff demonstrated that defendants’ treatment was not medically unacceptable. Id. The court also noted that defendants both declined to prescribe narcotics pending additional information from an orthopedist and a physical therapist. Id. The record reflected that both defendants fully examined plaintiff, ordered alternative therapies, and provided non-prescription analgesic medication to treat plaintiff’s chronic conditions. Id. In Murray v. Warden, 2020 WL 4339450 (E.D. Cal. July 28, 2020), the plaintiff alleged that he suffered from inoperable brain cancer that caused him to suffer inoperable headaches. 2020 WL 4339450, at *2. The plaintiff had previously been prescribed morphine to manage the pain. Id. The physician treating plaintiff before defendant Aung had discontinued morphine. Id. When plaintiff saw defendant Aung, defendant prescribed Tylenol 3 and then halved the dosage, which caused plaintiff significant head pains. Id. Defendant Aung then referred plaintiff to a neurologist who labeled him a drug seeker and recommended plaintiff be prescribed amitriptyline, which is an antidepressant. Id. Plaintiff requested that he be re-prescribed morphine, as recommended by his neurosurgeon. Id. In dismissing the case at screening, the court found that plaintiff had failed to allege facts showing that defendant Aung was deliberately indifferent to his serious medical needs. Id. at 3. The court found that plaintiff had not alleged that defendant Aung completely discontinued his pain medication. Id. Plaintiff alleged that it was a previous physician who discontinued pain medication altogether, and that defendant Aung reinstated a pain medication other than morphine, referred plaintiff to a specialist, who recommended another non-narcotic option for pain management. Id. The court found that plaintiff had alleged a difference of opinion between himself and his physician, and between physicians, as to the appropriate method of pain management. Id. //// In Joseph v. Clayton, 2020 WL 804863 (S.D. Cal. Feb. 18, 2020), the plaintiff alleged that he suffered from cirrhosis of the liver which caused him to suffer severe pain and discomfort. 2020 WL 804863, at *2. Plaintiff alleged that a neurologist told defendant Clayton to “put [plaintiff] on pain management.” Id. Plaintiff alleges that by putting plaintiff on “pain management,” defendant Clayton tried to cut off his pain medication and “played games” with his Tramadol. Id. Plaintiff also claimed that defendant Clayton falsely reported that plaintiff “refused to test” and wrongly labeled plaintiff a drug abuser. Id. Plaintiff attached to his complaint a medical record which contained a referral to a “PCP” for “pain mgnt.” Id. at 3. Plaintiff also attached a “Chronic Pain Intake Sheet,” listing, among other things, plaintiff’s medications. Id. The district court granted defendant Clayton’s motion to dismiss, finding that, Without “further factual enhancement” which plausibly suggests Clayton modified Joseph’s pain management plan to reduce his tramadol dependence knowing that it would cause a serious and medically unacceptable risk of harm to him, Joseph’s Complaint fails to plead the deliberate indifference necessary to sustain a plausible claim for relief. Id.; see also Toguchi, 391 F.3d at 1058 (finding claims that “Seroquel is superior to Triafon, and therefore should not have been discontinued” insufficient to support showing of “deliberate indifference”); see also DeGeorge v. Mindoro, 2019 WL 2123590, at *7 (N.D. Cal. May 15, 2019) (finding prison doctor's decision “to wean plaintiff off morphine” was not “medically unacceptable” in light of other “reasonable steps [taken] to abate plaintiff’s pain” and finding no deliberate indifference despite plaintiff's claims that only morphine was “very effective” in treating his lower back pain). Id. at 6. In the three cases cited above, the complaints contained allegations or evidence based on which the courts could find that defendants did not act with deliberate indifference with respect to their decisions regarding pain medication. In Murray and Mize, the records contained evidence that the defendant doctors relied on the opinions of specialists in their decisions to alter the plaintiffs’ pain medications. In other words, the records in these cases contained evidence from which the courts could conclude that the decisions to alter the pain medications were medically acceptable. In Joseph v. Clayton, the record apparently contained evidence that the defendants were reasonably attempting to wean plaintiff off Tramadol. In contrast, plaintiff in the instant case alleges that defendants Vaughn and Smith discontinued his previously prescribed methadone, which effectively treated his pain, and substituted it with Tylenol, which did not effectively treat his pain. Plaintiff does not allege that defendants relied on specialists in making their decisions or that they had other valid reasons to alter plaintiff’s previously effective pain medication. For these reasons, the undersigned finds that at this stage of the litigation the instant case is distinguishable from the three cases discussed above.5 In their reply to plaintiff’s opposition, defendants contend that plaintiff attaches medical records to his opposition that undermine his claims against defendants Smith and Vaughn. Defendants contend that plaintiff attaches medical records indicating that his pain prescription for methadone from another institution was discontinued and replaced in 2013 with a combination of Tylenol # 3 and Cymbalta. (ECF No. 88 at 5 n.3 (citing ECF No. 86 at 18, 25, 31).) Defendants argue that none of the exhibits attached to the opposition mention defendant Smith, and defendant Vaughn is mentioned just once for a follow-up ophthalmology appointment on December 15, 2017. (Id., citing ECF No. 86 at 51.) The undersigned cannot consider the exhibits attached to plaintiff’s opposition in resolving the pending motion to dismiss. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d at 899 (in ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.”). Defendants may address these exhibits in a summary judgment motion. For the reasons discussed above, defendants’ motion to dismiss plaintiff’s claims against defendants Smith and Vaughn for failing to allege sufficient facts demonstrating deliberate indifference should be denied. //// 5 Citing Estelle v. Gamble, 429 U.S. at 105, plaintiff alleges that a prison doctor cannot intentionally interfere with treatment once prescribed by a specialist. (ECF No. 17 at 4.) These allegations suggest that a specialist, possibly Ahmed, previously prescribed opioid medication for plaintiff and defendants, who apparently are not specialists, discontinued this medication. Alleged Denial of Mattress Chrono In the motion to dismiss, defendants argue that while plaintiff emphasizes that prison officials at other institutions approved his mattress chrono, defendants cannot be deemed deliberately indifferent because their opinions differed from other prison medical personnel. Defendants also argue that this decision did not implicate any serious medical need of plaintiff. Defendants argue that instead of plaintiff sleeping on his privately purchased orthopedic mattress, plaintiff slept on a standard issue custody mattress. Defendants argue that plaintiff does not explain how any of his alleged medical ailments required sleeping on an orthopedic mattress, and nor does plaintiff allege any specific injury or harm resulting from use of a standard mattress. Defendants also argue that, as alluded to in the second amended complaint, California Code of Regulations, title 15, § 3999.394(b) expressly exempts, “[b]edding including standard- issued custody mattresses” as a medically necessary accommodation and further prohibits health care staff from ordering them. Defendants argue that given the regulation contained in § 3999.394(b), defendants’ decision not to renew plaintiff’s mattress chrono was not “medically unacceptable.” Defendants argue that the decision not to renew plaintiff’s mattress chrono comports with CDCR policy against designating mattresses as medically necessary. The undersigned sets forth in more detail plaintiff’s claims regarding the alleged denial of the mattress chrono. In the second amended complaint, plaintiff alleges that while housed at his previous yard, i.e., MCSP C-yard, he purchased an orthopedic mattress with his own money. (ECF No. 17 at 4.) Plaintiff later transferred to MCSP E-yard. (Id.) Plaintiff alleges that on E- yard, “medical is not to provide any extra mattresses to any inmates no matter how much pain an inmate is in,” so plaintiff is denied his two “personally purchased” orthopedic mattresses. (Id. at 5.) Plaintiff alleges that the correctional officers in Receiving and Release, where his mattresses are stored, told him that he needed a chrono from his new PCP, defendant Vaughn, to receive his mattresses. (Id.) Defendant Vaughn allegedly denied plaintiff’s request for a chrono to receive these mattresses. (Id.) Plaintiff alleges that he has chronos going back as far as June 12, 2009, which “means that every other prison yard have always provided plaintiff with his medical necessity except this new yard.” (Id.) Turning to defendants’ arguments, while § 3999.394(b) states that bedding is not considered a medically necessary accommodation, and shall not be ordered by health care staff, it appears that this regulation applies to state-issued mattresses. However, plaintiff allegedly purchased the orthopedic mattresses himself and was permitted to have the mattresses in his cell while housed in the MCSP C-yard. Based on these circumstances, without further explanation the undersigned cannot determine the relevancy of § 3999.394(b) to orthopedic mattresses purchased by inmates.6 Defendants argue that their decision to discontinue plaintiff’s mattress chrono amounts to a difference of opinion with the prison personnel who previously approved plaintiff’s mattress chrono. However, plaintiff alleges that every prison approved his request for a mattress chrono going back as far as June 2, 2009. Based on these allegations, the undersigned cannot determine whether the decision by defendants Smith and Vaughn to deny plaintiff’s mattress chrono was medically acceptable. Defendants suggest that plaintiff has not alleged a serious medical need requiring his use of an orthopedic mattress. In the opposition, plaintiff alleges that his orthopedic mattresses were required due to degenerative joint disc disease and hip replacement. (ECF No. 86 at 4-5.) In the second amended complaint, plaintiff alleges that he suffers from a variety of conditions including “post right total hip replacement.” (ECF No. 17 at 3.) Based on plaintiff’s description of his ailments, and plaintiff’s claim that personnel at other prisons permitted plaintiff to have the orthopedic mattresses in his cell for several years, the undersigned finds that plaintiff has pled sufficient facts demonstrating that he had a serious medical need that required use of an orthopedic mattresses. For the reasons discussed above, defendants’ motion to dismiss plaintiff’s claim regarding the denial of his request for a chrono for his orthopedic mattresses should be denied. ////

6 Defendants may be arguing that orthopedic mattresses are not medically necessary per se pursuant to 3999.394(b). However, the undersigned requires further information in order to evaluate this argument. V. Defendant Soltanian-Zadeh’s Motion to Dismiss A. Exhaustion of Administrative Remedies Defendant Soltanian-Zadeh first moves to dismiss plaintiff’s claims on the grounds that plaintiff failed to exhaust administrative remedies. (ECF No. 79-1 at 3-5.) Defendant argues that there is no evidence on the face of the complaint if or when plaintiff exhausted his health care claims against defendant Soltanian-Zadeh. (Id. at 5.) Under the Prison Litigation Reform Act (PLRA), a prisoner must fully exhaust all available administrative remedies before bringing an action under § 1983. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences”). While exhaustion is a mandatory requirement that will result in dismissal if not met, Ross v. Blake, 136 S. Ct. 1850, 1856 (2016), “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, “the defendant in a PLRA case must plead and prove nonexhaustion as an affirmative defense,” and it is the defendant’s burden “to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citations omitted). “In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. at 1166. It is not clear on the face of plaintiff’s second amended complaint that plaintiff failed to exhaust administrative remedies as to his claims against defendant Soltanian-Zadeh. Accordingly, defendant Soltanian-Zadeh’s motion to dismiss on these grounds should be denied. B. Failure to State a Claim In the motion to dismiss, defendant Soltanian-Zadeh contends that it is not clear if plaintiff is alleging that defendant improperly stopped or reduced his pain medication and/or also improperly stopped or reduced plaintiff’s mesalamine.7 The undersigned clarifies that plaintiff is proceeding on a claim that defendant Soltanian-Zadeh violated plaintiff’s Eighth Amendment right to 7 In the motion to dismiss, defendant identifies mesalamine as a drug used to treat and prevent mild to moderately active ulcerative colitis. (ECF No. 78-1 at 4 n.2.) adequate medical care by stopping or reducing plaintiff’s pain medication, i.e., methadone. Defendant Soltanian-Zadeh first argues that plaintiff’s allegations do not state a potentially colorable Eighth Amendment claim because plaintiff does not allege sufficient facts demonstrating the objective prong of the deliberate indifference standard. Defendant Soltanian- Zadeh argues that plaintiff does not allege a sufficiently serious deprivation to constitute cruel and unusual punishment because plaintiff does not allege the dates when the pain medication started or ended. Defendant argues that plaintiff fails to indicate any symptom or condition which were treated with the pain medication. Defendant also argues that plaintiff does not allege why opioid medication was prescribed. As discussed above, in the second amended complaint plaintiff describes nine medical conditions plaintiff suffered from. (ECF No. 17 at 2-3.) While it is fairly clear that plaintiff was not prescribed methadone for all of these conditions, it is reasonable to infer that plaintiff was prescribed methadone for some of these conditions. Plaintiff also alleges that defendant Soltanian-Zadeh stopped his methadone prescription upon his arrival at MCSP. (Id. at 3.) Based on these allegations, and plaintiff’s claim that his severe pain continued after the discontinuation of methadone, the undersigned finds that plaintiff pled sufficient facts in support of the objective element of the deliberate indifference standard. Defendant Soltanian-Zadeh next argues that plaintiff has not pled sufficient facts supporting the subjective element of the deliberate indifference standard. Defendant Soltanian- Zadeh argues that defendants Vaughn and Smith also agreed that plaintiff’s opioid prescription should be discontinued. Based on these allegations, defendant argues that defendant Soltanian- Zadeh could not have subjectively known of an excessive risk to plaintiff’s health when all other physicians mentioned were either in agreement with defendant Soltanian-Zadeh’s treatment or not conspicuously opposed to his decision. //// //// //// //// In the second amended complaint plaintiff alleges, Plaintiff’s severe pain has been constant and had been alleviated by specific pain medications at previous prisons, but upon entering MCSP, plaintiff’s pain medications were stopped; plaintiff’s conditions that cause him pain had not changed so the pain still existed; Dr. Soltanian cannot assume that his patient has no pain… (Id. at 3.) Plaintiff also alleges that defendant Soltanian-Zadeh told plaintiff, “CDCR is not responsible to treat you for anything except to allow you to eat, shit and take care of yourself,” when he discontinued plaintiff’s methadone. (Id. at 4.) While defendants Smith and Vaughn apparently later agreed with defendant Soltanian- Zadeh’s decision to discontinue plaintiff’s methadone, plaintiff alleges that the previously prescribed methadone effectively treated his severe pain. Plaintiff alleges that he suffered pain after defendants discontinued his methadone. Based on these allegations, the undersigned cannot find that the decision to discontinue plaintiff’s methadone was medically acceptable. Edmo v. Corizon, Inc., 935 F.3dat 786 (difference of opinion between medical professionals does not amount to deliberate indifference if the dueling opinions are medically acceptable under the circumstances). Accordingly, for the reasons discussed above, the undersigned recommends that defendant Soltanian-Zadeh’s motion to dismiss on the grounds that plaintiff has not pled sufficient facts to state an Eighth Amendment claim be denied. VI. Remaining Matters Plaintiff’s Request for Subpoenas (ECF No. 78) Plaintiff requests that the court issue a subpoena to defendants for the production of various documents. Federal Rules of Civil Procedure 45(a)(D) provides that parties to a case may obtain discovery from non-parties through a subpoena. Rule 45(a)(D) does not apply to discovery from a party. See Lee v. Multnomah County Mental Health Department in County Detention Center, 2018 WL 5848971, at *1 (D. Ore. Nov. 7, 2018) (citing Wirtz v. Local Union 169, Intern. Hod Carriers’ Bldg. and Common Laborers’ Union of America, AFL-CIO, 37 F.R.D. 349, 351 (D. Nev. 1965) (subpoena duces tecum is not intended as substitute for request to produce where subpoena requires production of documents under control of party as distinguished from independent witness). Plaintiff’s motion for subpoenas is denied as it improperly seeks documents from defendants. Plaintiff’s Summary Judgment Motion (ECF No. 87) Plaintiff moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 as to his claims against defendants Soltanian-Zadeh, Smith and Vaughn. All defendants oppose plaintiff’s summary judgment motion on the grounds that it is premature. (ECF Nos. 90, 91.) The undersigned agrees. “Although Rule 56 allows a party to file a motion for summary judgment ‘at any time,’ the rule also allows the court, as is just, to deny the motion or order a continuance for the opposing party to pursue discovery.” Gordon v. Marquez, 2019 WL 1017323, at *1 (E.D. Cal. March 4, 2019). In the instant case, defendants have not answered plaintiff’s second amended complaint, the claims on which this action proceeds are not yet settled and no discovery order has been issued. Accordingly, plaintiff’s motion for summary judgment should be denied as premature. See also Williams v. Yuan Chen, 2011 WL 4354533, at *3 (E.D. Cal. Sept. 16, 2011) (denying plaintiff’s summary judgment motion as premature where defendant had not filed an answer and the court had not issued a discovery order). Motion to Strike Surreply (ECF No. 96) Defendant Soltanian-Zadeh moves to strike plaintiff’s surreply to defendant’s motion to dismiss. For the reasons stated herein, the motion to strike is granted. Defendant Soltanian-Zadeh filed a motion to dismiss. (ECF No. 79.) Plaintiff filed an opposition to defendant Soltanian-Zadeh’s motion to dismiss. (ECF No. 85.) Defendant Soltanian-Zadeh filed a reply to plaintiff’s opposition. (ECF No. 89.) Plaintiff then filed a document titled “Plaintiff’s Shockner’s Reply to Defendant Motions to Dismiss Second Amended Complaint and Opposition to Motion for Summary Judgment.” (ECF No. 95.) This document appears to address arguments raised in defendant Soltanian- Zadeh’s motion to dismiss. Defendant Soltanian-Zadeh moves to strike this document as an improper surreply. Neither the Federal Rules of Civil Procedure, nor the Local Rules for the Eastern District of California permit the filing of a surreply as a matter of right. See Garcia v. Biter, 195 F.Supp.3d 1131, 1133-34 (E.D. Ca. July 18, 2016) (noting the plaintiff did not have a right to file a surreply under the local rules or under the Federal Rules of Civil Procedure). However, district courts have discretion to permit, or preclude, a surreply. Id. at 1133 (other citations omitted). While courts are required to provide pro se litigants leniency, the court generally views motions for leave to file a surreply with disfavor and will not consider granting a motion seeking leave to file a surreply absent good cause shown. Id. (other citations omitted). Plaintiff did not seek leave to file a surreply and nor has plaintiff shown good cause to file a surreply. Accordingly, defendant’s motion to strike plaintiff’s surreply is granted. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff’s motion for subpoenas (ECF No. 78) is denied; 2. Defendant Soltanian-Zadeh’s motion to strike plaintiff’s surreply (ECF No. 96) is granted; IT IS HEREBY RECOMMENDED that: 1. Defendant Soltanian-Zadeh’s motion to dismiss (ECF No. 79) be denied; 2. The motion to dismiss filed by defendants Smith and Vaughn (ECF No. 80) be denied; 3. Plaintiff’s summary judgment motion (ECF No. 87) be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be filed and served within fourteen days after service of the objections. The //// //// //// parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: July 27, 2021 ' Foci) Aharon UNITED STATES MAGISTRATE JUDGE Shock1948.mtd(5) 1] 22