Sekerke v. Leo

Opinion

1 2 3 4 5 6 7 10 11 KEITH WAYNE SEKERKE, Case No.: 3:19-cv-0034-GPC-RBB Booking No. 18165284, 12 ORDER GRANTING IN PART AND Plaintiff, 13 DENYING IN PART DEFENDANTS’ vs. MOTION TO DISMISS PORTIONS 14 OF PLAINTIFF’S SECOND

15 AMENDED COMPLAINT AND ARTURO LEON; MARK O’BRIEN; VACATING HEARING 16 JON MONTGOMERY; DANE OLSEN 17 and COUNTY OF SAN DIEGO, [ECF No. 58] 18 Defendants. 19 20 Before the Court is Defendants Arturo Leon and Mark O’Brien’s motion to dismiss 21 Plaintiff’s First, Second, Third, and Fifth claims for relief in the Second Amended 22 Complaint (ECF No. 54, “SAC”). ECF No. 58. Plaintiff filed an opposition on March 23 25, 2020. ECF No. 65. Defendants filed a reply on March 31, 2020. ECF No. 66. 24 The Court hereby GRANTS in part and DENIES in part Defendants’ motion 25 and VACATES the hearing on the motion that was scheduled for April 17, 2020. 26 I. Procedural Background 27 On January 7, 2019, Plaintiff proceeding pro se and in forma pauperis, filed this 28 lawsuit. ECF No. 1. Plaintiff currently resides in San Diego County Jail. On February 1 25, 2019, Plaintiff filed a First Amended Complaint (“FAC”) bringing claims under 42 2 U.S.C. § 1983, with supplemental state tort claims, against Arturo Leon (sued as “Arturo 3 Leo”), Mark O’Brien (“O’Brien”), and Sheriff William Gore. ECF No. 7 (“FAC”). In 4 the FAC, Plaintiff argued that his right to medical care had been violated due to 5 Defendants’ policy of refusing to provide narcotics to inmates. Id. 6 On August 14, 2019, Plaintiff filed a motion to join defendants Medical 7 Administrator Barbara Lee, Deputy Olsen, Sergeant A. Sevilla, and Lieutenant Laura 8 Coyne. ECF No. 21. On September 9, 2019, Plaintiff filed a motion for joinder of new 9 claims and therein only named as defendants, Arturo Leon, Mark O’Brien, and Barbara 10 Lee. ECF No. 26. On October 9, 2019, Plaintiff also filed an Ex Parte Notice of 11 Retaliation and Request for Duplicate Orders requesting, inter alia, duplicate copies of all 12 filings and court orders since July 2019. On October 11, 2019, the Court granted 13 Plaintiff’s request for copies, denied Plaintiff’s motions for joinder of new claims and 14 new defendants, and directed Plaintiff to file a motion for leave to file a second amended 15 complaint if he wished to add defendants and claims to this case. ECF No. 30. 16 On November 27, 2019, Plaintiff filed a motion for leave to file a Second 17 Amended Complaint (“SAC”). ECF No. 35. The SAC named Dr. Arturo Leon (“Dr. 18 Leon”) and Dr. Mark O’Brien (“Dr. O’Brien”), as defendants and sought to add as new 19 defendants, Jon Montgomery (“Montgomery”) and Dane Olsen (“Deputy Olsen”). The 20 SAC alleged seven causes of action as follows: (1) Inadequate medical care against Drs. 21 Leon and O’Brien; (2) Inadequate medical care – MRSA Infection (failure to provide 22 treatment) against Dr. Leon; (3) Inadequate medical care – Denying Prescription against 23 Drs. Montgomery and O’Brien; (4) State Supplemental Medical Claims against Dr. Leon; 24 (5) Personal Injury against Dr. Leon; (6) Retaliation against Deputy Olsen; and (7) 25 Liability of San Diego County based on all other Defendants being agents, employees, or 26 co-conspirators. 27 Due to a clerical error, the motion seeking permission to file a SAC was initially 28 processed by the Court as a filed SAC and summonses were issued. ECF No. 35. On 1 December 10, 2019, the Court issued a minute order correcting the error. As a result, the 2 summonses issued on November 27, 2019 were withdrawn from the docket. On 3 December 20, 2019, the U.S. Marshals personally served Dr. Montgomery with a copy of 4 the summons withdrawn by the December 10, 2019 order. ECF Nos. 36-37. On 5 December 19, 2019, Deputy Olsen was served by mail with a copy of the withdrawn 6 summon. On January 7, 2020, Montgomery and Olsen filed a motion to quash service of 7 the summonses. ECF No. 45-1. 8 On February 10, 2020, the Court granted the motion to quash as to Defendants 9 Olsen and Montgomery, and directed that the Clerk of Court issue a new summons as to 10 all the named Defendants in the SAC. In addition, the Court granted the motion to amend 11 as to Counts One, Two, Three, Five, Six and Seven, subject to certain limitations and 12 denied it as to Count Four.1 13 II. Factual Background 14 The factual background has been recited at length in prior orders.2 In brief and 15 most relevant part, Plaintiff arrived at San Diego County Jail on October 11, 2018. In 16 Count One, Plaintiff alleges that all Defendants are practicing a blanket policy of “no 17 narcotic pain medication in violation of the Eighth Amendment.” SAC at 3.3 Plaintiff 18 alleges that, after his arrival, Plaintiff’s pharmacy faxed Plaintiff’s prescriptions to the jail 19 but Plaintiff was never provided with his prescription medication. Id. at 9. Plaintiff 20 argues that there is “no penological purpose” for this policy and that “[s]uch a blanket 21 policy is unconstitutional.” Id. at 4. 22 23 24 1 The Court also denied Plaintiff’s motion for a temporary restraining order and emergency injunction, 25 noting that his motion was premised on events outside of the scope of this action and additionally, appeared to be moot given the provision of medical care that was already provided to him. ECF No. 53 26 at 17-18. 2 The factual background is recited in the Court’s prior orders denying Plaintiff’s motions to join 27 defendants and claims (ECF No. 30) and granting in part and denying in part Plaintiff’s motion for leave to file a second amended complaint (ECF No. 53). 28 1 In the SAC, Plaintiff alleges that he was denied medical care between October and 2 November of 2018 based on the following allegations: (1) Plaintiff developed MRSA4 3 infection within a day of arriving to jail facility (Count Two); and (2) Plaintiff has been 4 denied prescription medication to manage the pain related to his opioid withdrawals. 5 Plaintiff alleges that as a result of the denial of the prescription medication, he has 6 “suffered severely”; his “sleep is denied”; and “often times can’t even focus on reading a 7 book due to the pain.” Id. Plaintiff states that his “[d]aily activities such as putting on 8 clothes, cleaning, and showering can not be done without suffering through severe pain” 9 and that his “blood pressure has dramatically increased.” Id. Plaintiff also alleges that he 10 suffers from cervical and spinal stenosis, degenerative disk disease, scoliosis, and severe 11 pain and inflammation in his thoracic spine. Id. at 4, 5. 12 Dr. Leon 13 With respect to Dr. Leon, Plaintiff alleges a violation of his right to adequate 14 medical on the basis of denial of prescription medication (Count One) as described 15 above, and for failure to provide Plaintiff with treatment for the MRSA infection (Count 16 Two). With respect to the MRSA infection, Plaintiff alleges that his infection worsened 17 for three months until November 30, 2018 when a judge ordered Plaintiff to be seen by a 18 medical professional. Id. at 6. Plaintiff alleges that due to Dr. Leon’s failure to provide 19 treatment, Plaintiff has sustained a permanent black scar on his ankle and permanent 20 feelings of a “numb-like sensation to the touch that sends a minor painful sensation to the 21 foot.” Id. at 6. 22 Plaintiff also brings a personal injury claim against Dr. Leon for refusing to taper 23 Plaintiff off his opioid pain management medications (Count Five) which caused Plaintiff 24 to suffer from extreme withdrawal symptoms and to collapse and hit his head on a steel 25

26 27 4 The Merriam-Webster online dictionary defines "MRSA" to mean "methicillin-resistant Staphylococcus aureus." Merriam-Webster, https://www.merriam-webster.com/dictionary/MRSA (last 28 1 door on November 5, 2018. Id. at 9. Plaintiff alleges that the Physician Desk Reference 2 (“PDR”) book warns users of his pain management medication, Lyrica, to “[a]void abrupt 3 withdrawal. Gradually taper over 1 week.” Plaintiff further alleges that the PDR also 4 warns against abrupt withdrawal from his morphine medication. Id. at 9. 5 Plaintiff also alleges that Leon prescribed nonsteroidal anti-inflammatory drug 6 (“NSAID”) medication which Plaintiff alleges subjected Plaintiff’s liver and kidneys to 7 unnecessary risk of harm. Id. at 8. 8 Dr. O’Brien 9 In Count One, Plaintiff alleges that he has written letters addressed to Dr. O’Brien 10 to no avail and that the Defendants (Dr. Leon and Dr. O’Brien) are practicing a blanket 11 policy of no narcotic pain medication in violation of the Eight Amendment. Id. at 7. In 12 Count Three, Plaintiff alleges that Dr. O’Brien is a jail medical officer and has continued 13 to deny him the treatments ordered by the jail physician. Id.5 14 III. Discussion 15 Defendants Dr. Arturo Leon (“Leon”) and Dr. Mark O’Brien (“O’Brien”) argue 16 that Plaintiff’s First, Second, Third, and Fifth Causes of Action fail to state a claim and 17 should be dismissed as against them without leave to amend. Plaintiff opposes. 18 a. Legal Standard 19 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to 20 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal 21 under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or 22 sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police 23 Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required 24 only to set forth a “short and plain statement of the claim showing that the pleader is 25

26 5 Plaintiff also alleges (1) a retaliation claim against Deputy Olsen, claiming that Deputy Olsen placed 27 Plaintiff in administrative segregation one week after Plaintiff filed the original complaint in this Court (SAC at 10); and (2) that County of San Diego is liable since all other Defendants were acting as agents, 28 1 entitled to relief,” and “give the defendant fair notice of what the ... claim is and the 2 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 A complaint may survive a motion to dismiss only if, taking all well-pleaded factual 4 allegations as true, it contains enough facts to “state a claim to relief that is plausible on 5 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 6 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows 7 the court to draw the reasonable inference that the defendant is liable for the misconduct 8 alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by 9 mere conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a 10 motion to dismiss, the non-conclusory factual content, and reasonable inferences from 11 that content, must be plausibly suggestive of a claim entitling the plaintiff to 12 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations 13 omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged 14 in the complaint, and draws all reasonable inferences in favor of the plaintiff. al-Kidd v. 15 Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 16 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 17 the court determines that the allegation of other facts consistent with the challenged 18 pleading could not possibly cure the deficiency.’ ” DeSoto v. Yellow Freight Sys., Inc., 19 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 20 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would 21 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 22 806 F.2d at 1401. 23 b. Violations of Right to Medical Care (First, Second and Third Causes of 24 Action) 25 “The government has an ‘obligation to provide medical care for those whom it is 26 punishing by incarceration,’ and failure to meet that obligation can constitute an Eighth 27 Amendment violation cognizable under § 1983.” Colwell v. Bannister, 763 F.3d 1060, 28 1066 (9th Cir. 2014). The motivating principle underlying this obligation is the belief 1 that the public “be required to care for the prisoner, who cannot by reason of the 2 deprivation of his liberty, care for himself.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). 3 “In order to prevail on an Eighth Amendment claim for inadequate medical care, a 4 plaintiff must show deliberate indifference to his serious medical needs.” Id. (internal 5 citations omitted). “This includes both an objective standard—that the deprivation was 6 serious enough to constitute cruel and unusual punishment—and a subjective standard— 7 deliberate indifference.” Id. (internal citations omitted). 8 To meet the objective element of the standard, a plaintiff must demonstrate the 9 existence of a “serious medical need.” Estelle, 429 U.S. at 106. Such a need exists if 10 failure to treat the injury or condition “could result in further significant injury” or cause 11 “the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 12 (9th Cir. 2006). “Indications that a plaintiff has a serious medical need include the 13 existence of an injury that a reasonable doctor or patient would find important and worthy 14 of comment or treatment; the presence of a medical condition that significantly affects an 15 individual's daily activities; or the existence of chronic and substantial pain.” Colwell, 16 763 F.3d at 1066 (internal citations omitted). 17 The subjective element of the standard is satisfied by showing “(a) a purposeful act 18 or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by 19 the indifference.” Jett, 439 F.3d at 1096. Deliberate indifference “may appear when 20 prison officials deny, delay or intentionally interfere with medical treatment, or it may be 21 shown by the way in which prison physicians provide medical care.” Hutchinson v. 22 United States, 838 F.2d 390, 394 (9th Cir. 1988). “In deciding whether there has been 23 deliberate indifference to an inmate's serious medical needs, we need not defer to the 24 judgment of prison doctors or administrators.” Hunt v. Dental Dep't, 865 F.2d 198, 200 25 (9th Cir. 1989). 26 1. First Cause of Action 27 The First Cause of Action is alleged against Dr. Leon for his refusal to provide 28 Plaintiff with morphine in order to treat Plaintiff’s opioid addition withdrawal symptoms 1 and Dr. Leon’s prescription of NSAID medication that Plaintiff alleges aggravated his 2 gastrointestinal condition. As against Dr. O’Brien, Plaintiff alleges that he wrote letters 3 addressed to Dr. O’Brien to no avail and alleges in a conclusory fashion that Dr. O’Brien 4 practiced a blanket policy of no narcotic pain medication. SAC at 3. 5 Defendants argue that Plaintiff’s claim should be dismissed since he has failed to 6 sufficiently allege both requisite prongs for deliberate indifference: (1) the purposeful act 7 or failure to respond to a prisoner’s pain or possible medical need and (2) the harm 8 caused by the indifference. 9 On the first prong, a purposeful act or failure to respond, Dr. Leon argues that 10 Plaintiff’s complaints about Dr. Leon – i.e., prescribing Plaintiff NSAID medication and 11 refusing to taper Plaintiff off morphine are insufficient to show deprivation of medical 12 care – because they show that Dr. Leon actually did respond to and address Plaintiff’s 13 medical needs, and therefore disprove the allegation that Dr. Leon committed a 14 purposeful act or failed to respond to a prisoner’s pain or possible medical need. Plaintiff 15 counters that Defendants did not respond reasonably to the risk since his pharmacy faxed 16 over “6 months worth of prescription records” to the prison. ECF No. 65 at 6.6 Plaintiff 17 also alleges that Defendants have Plaintiff’s medical records from “Family Health Center 18 as well as past medical records proving [his] severe medical conditions.” ECF No. 65 at 19 10. Based on this, Plaintiff argues that Defendants were aware that Plaintiff was 20 receiving opioid pain management and were also aware “of how long Plaintiff had been 21 on opioid pain management” and that insured “FDA guidelines” and standard medical 22 care mandate the tapering of any patient’s opioid medication to address withdrawal 23 symptoms. Id. 24

25 26 6 Plaintiff cites Farmer v. Brennan, 511 U.S. 825, 837 (1994) for this proposition. While the Supreme Court in Farmer did consider the question of “deliberate indifference” under the Eighth Amendment, the 27 factual allegations are markedly different. In Farmer, petitioner filed a Bivens complaint, alleging that, placing petitioner, a transsexual female, in the prisons general population demonstrated a deliberate 28 1 On the second prong, harm caused by deliberate indifference, Dr. Leon contends 2 that Plaintiff has failed to establish any causal relationship between Dr. Leon’s actions 3 and his harm. On the refusal to provide Plaintiff with morphine, Defendants allege that 4 Plaintiff has failed to establish that Dr. Leon caused Plaintiff “harm separate from the 5 underlying pain caused by his preexisting conditions.” ECF No. 58-1 at 6. However, the 6 crux of Plaintiff’s argument is that Dr. Leon’s refusal to prescribe Plaintiff morphine to 7 ease his opioid addiction withdrawal symptoms has led to his deterioration in health 8 because the morphine would have alleviated the pain caused by his preexisting 9 conditions. Additionally, Plaintiff has sufficiently alleged harm in arguing that he has 10 “suffered withdrawals and was sent to the ER multiple times” and also has suffered a 11 “continued increase” in his blood pressure due to the chronic pain. ECF No. 65 at 9-10. 12 In Jett, the Ninth Circuit held that the district court prematurely dismissed the 13 plaintiff’s claims where he alleged that the prison doctors were deliberately indifferent to 14 his medical needs in light of his fractured thumb. The Ninth Circuit found that 15 “deliberate indifference” could still exist even where prison doctors ordered x-rays, 16 prescribed pain medicine, and continued to see the plaintiff prisoner. See Jett, 439 F.3d 17 at 1096 (9th Cir. 2006). The Jett court pointed to evidence that suggested the doctors 18 might have been aware of aftercare instructions but did not follow them. Id. at 1097. At 19 this time, it would be premature to dismiss Plaintiff Sekerke’s claims with respect to the 20 refusal to prescribe opioid medication or with respect to the prescription of the NSAIDS. 21 See e.g., Goldman v. Fed. Bureau of Prisons, 768 F. App’x 714 (9th Cir. 2019) (district 22 court dismissal was premature where incarcerated plaintiff alleged that prison officials 23 denied prescribed medication for his opioid addiction). 24 Dr. Leon argues that Plaintiff’s claims should be considered in the context of 25 “medical malpractice,” rather than deliberate indifference, citing Estelle, 429 U.S. at 106 26 (“Medical malpractice does not become a constitutional violation merely because the 27 victim is a prisoner.”). However, in Estelle, the Supreme Court focused on the 28 “inadvertent” or “accidental” nature of the prison officials’ actions. Id. at 105-106. The 1 Estelle plaintiff had been prescribed multiple medications for pain related to his lower 2 back injury, but his prescription was not filled because the prison staff officials lost his 3 prescription. Id. at 100. Here, Sekerke’s allegations target Dr. Leon’s actions that were 4 not inadvertent or accidental, but instead, were deliberately undertaken in accordance 5 with an internal policy declining to prescribe any narcotics to incarcerated individuals. 6 Accordingly, Dr. Leon’s motion to dismiss is DENIED as to the alleged refusal to 7 provide morphine. 8 On the question of the provision of the NSAID medications, Dr. Leon argues that 9 Plaintiff has not shown how this caused him pain. Plaintiff alleges that the prescription 10 of NSAID medications is “so below the standard of care that it amounts to no treatment at 11 all.” ECF No. 65 at 7. Plaintiff does not argue that the provision of NSAID medications 12 amounts to deliberate indifference, but rather, that it falls short of the requisite standard 13 of care. Therefore, while the provision of NSAID medication may provide relevant 14 factual background, Dr. Leon’s actions in providing NSAID medication are not 15 actionable and the motion to dismiss this theory of liability is GRANTED. 16 Similarly, with respect to Plaintiff’s allegations regarding Dr. Leon’s attempt to 17 present himself as “Dr. Jose Jiminez,” the Court finds that Plaintiff has not alleged how 18 this might have caused any harm. As such, Plaintiff’s theory of liability based on this 19 allegation is insufficient and the motion to dismiss this theory is GRANTED with 20 prejudice. 21 As to Dr. O’Brien, the two bare allegations against him are so vague that they do 22 not reveal a purposeful act or failure to respond that led to Plaintiff’s harm caused by 23 deliberate indifference. Consequently, Dr. O’Brien’s motion to dismiss is GRANTED. 24 2. Second Cause of Action 25 The Second Cause of Action is brought against Dr. Leon for his alleged failure to 26 provide Plaintiff with any treatment for the MRSA infection that plaintiff contracted 27 “within a day of arriving” to the jail. SAC at 6. Dr. Leon argues that Plaintiff’s second 28 1 cause of action should be dismissed because it is an “impermissible attempt to transform 2 a medical malpractice [claim] into a constitutional violation.” ECF No. 58-1 at 7. 3 On the first prong of deliberate indifference, a purposeful act or failure to respond, 4 Dr. Leon argues that MRSA treatment is not a serious medical need since it does not 5 significantly affect his activities or create chronic and substantial pain. On the second 6 prong, harm caused by deliberate indifference, Defendants argue that Plaintiff has not 7 established a causal relationship and his allegations are too conclusory to establish that 8 Dr. Leon’s conduct somehow contributed to the worsening of Plaintiff’s condition. The 9 Court disagrees. Plaintiff alleges that his infection worsened over the course of the three 10 months that elapsed before he was able to get adequate treatment and that the delayed 11 treatment caused a permanent black scar and permanent damage (i.e., a “numb-like 12 sensation to the touch that sends a minor painful sensation to the foot). SAC at 6. At this 13 time, dismissing Plaintiff’s claims would be premature. See Jett, 439 F.3d at 1096 (9th 14 Cir. 2006); Goldman, 768 F. App’x 714 (9th Cir. 2019). 15 Dr. Leon argues that since Plaintiff did not address this argument in his opposition, 16 and so, on this basis, has failed to preserve his argument for appeal citing Walsh v. Nev. 17 Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006). However, Walsh is 18 inapplicable since there the plaintiff failed to plead her claim in her complaint. Further, 19 the Walsh court explained that “no bright line exists to determine whether an issue has 20 been properly raised below, but a workable standard is that the issue must be raised 21 sufficiently for the trial court to rule on it.” Walsh v. Nevada Dep't of Human Res., 471 22 F.3d 1033, 1037 (9th Cir. 2006) (internal citations omitted). Here, the issue of the MRSA 23 infection was properly raised before the trial court and Dr. Leon’s motion to dismiss is 25 3. Third Cause of Action 26 The third cause of action is brought against Dr. O’Brien and against non-movant 27 Defendant Jon Montgomery. Plaintiff primarily brings his allegations against 28 Montgomery for his alleged instructions to jail physicians to uphold the jail policy of 1 refusing to prescribe any narcotic pain medication for incarcerated individuals. With 2 respect to O’Brien, Plaintiff only states: “Defendant Jon Montgomery and Mark O’Brien 3 continue to deny the treatments ordered by the jail physician.” SAC at 9. Defendants 4 argue that this allegation is too “vague” to be sustained since Plaintiff has alleged neither 5 a serious medical need nor causation. The Court agrees with Defendants and finds that 6 Plaintiff has failed to allege sufficient facts with respect to Dr. O’Brien and GRANTS 7 Dr. O’Brien’s motion to dismiss and DISMISSES the claim with respect to Dr. O’Brien. 8 c. Personal Injury (Fifth Cause of Action) 9 In the Fifth Cause of Action, Plaintiff brings a personal injury claim against Dr. 10 Leon for refusing to taper Plaintiff off his opioid pain management medications, since, as 11 a result, Plaintiff suffered from extreme withdrawal systems and on November 5, 2018, 12 Plaintiff collapsed and hit his head on a steel door. Id. at 9. Paramedics were called and 13 Plaintiff was sent by ambulance to the UCSD hospital. Id. 14 Dr. Leon argues that Plaintiff’s claim should be understood as a claim for 15 professional negligence which requires that a plaintiff establish that a duty of care was 16 owed, the breach of such duty, a causal connection between alleged breach and claimed 17 injury, and actual damage. See Hanson v. Grode, 76 Cal. App. 4th 601, 606 (1999).7 18 Plaintiff does not address this argument in his opposition. Construing Plaintiff’s claim as 19 one for professional negligence, Plaintiff has failed to sufficiently allege what duty 20 Defendants have allegedly breached. 21 While the court “ha[s] an obligation where the petitioner is pro se, particularly in 22 civil rights cases, to construe the pleadings liberally and to afford the petitioner the 23 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 24 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 25

26 7 Defendant cites California Code of Civil Procedure Section 340.5(2), which does not list the elements 27 of an action against a health care provider, but provides that an action for injury against a health care provider must be brought within three years after the date of injury or one year after the plaintiff 28 1 elements of claims that were not initially pled.” Ivey v. Board of Regents of the 2 || University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 Plaintiff's injuries that he sustained as a result of hitting his head on the steel door 4 ||can be understood as part of his allegations related to the injuries he suffered as a result 5 inadequate medical care; however, he has not sufficiently alleged a claim for personal 6 ||injury or professional negligence. As such, Defendants’ motion to dismiss the fifth cause 7 ||of action is GRANTED. 8 d. Conclusion 9 In sum, the Court hereby GRANTS DR. O’Brien’s motion to dismiss the first and 10 || third causes of action without leave to amend and further GRANTS Dr. Leon’s motion to 11 dismiss the first cause of action as to the NSAID theory of recovery and the fifth cause of 12 || action without leave to amend. The Court DENIES Dr. Leon’s motion to dismiss the 13 || first cause of action as to the failure to provide morphine theory of recovery and the 14 || second cause of action.® 16 Dated: April 15, 2020 <= (Qr2atlo CE LE 17 Hon. Gonzalo P. Curiel 18 United States District Judge 19 20 21 22 23 24 SSS 25 8 Tn his opposition, Plaintiff improperly attaches a separate motion for a court order to provide Plaintiff 26 || with “pro-per legal status and access to the jail’s law library.” ECF No. 65 at 12. The underlying motion to dismiss was filed by Dr. Leon and Dr. O’Brien, and not by the County of San Diego. The 27 County of San Diego would be the proper party to address this issue and it is not clear whether the 28 County of San Diego was served with a copy of this motion. If Plaintiff wishes to have this motion heard by the Court, he must file this separately and direct it to the County of San Diego. 13