Wyres v. Zhang

• Court: District Court, S.D. California
• Decided: October 29, 2020
• Docket: 3:19-cv-02050
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TROY WYRES, Case No.: 19-cv-2050-TWR (KSC)

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING DEFENDANT’S 14 DR. RONALD ZHANG and MOTION TO DISMISS CALIFORNIA DEPARTMENT OF 15 CORRECTIONS AND [Doc. No. 10] 16 REHABILITATION, 17 Defendants. 18 19 Plaintiff Troy Wyres (“plaintiff”) is a prisoner proceeding pro se and in forma 20 pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. See Doc. Nos. 21 1, 5. Plaintiff alleges in his Complaint that defendant Ronald Zhang, M.D. (“Zhang”) 22 was deliberately indifferent to his serious medical needs, in violation of his Eighth 23 Amendment rights.1 See Complaint at 6-11.2 Before the Court is Zhang’s Motion 24 25 26 1 The California Department of Corrections and Rehabilitation (“CDCR”) was also named as a 27 defendant but was later dismissed from the case. See Complaint Under the Civil Rights Act 42 U.S.C. § 1983 (the “Complaint”), Doc. No. 1, at 2; Doc. No. 5 at 4. 28 1 pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff’s Complaint for 2 failure to state a claim for relief (the “Motion to Dismiss” or “Mot.”). Doc. No. 10. 3 Pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1, the undersigned Magistrate 4 Judge submits the following Report and Recommendation to United States District Judge 5 Todd W. Robinson. For the reasons that follow, the Court RECOMMENDS that the 6 District Court GRANT Zhang’s Motion to Dismiss. 7 I. BACKGROUND 8 A. Procedural History 9 On October 24, 2019, plaintiff filed his Complaint and a Motion to Proceed in 10 forma pauperis. See Doc. Nos. 1, 2. The District Court granted plaintiff leave to proceed 11 in forma pauperis on December 30, 2019. Doc. No. 5. At the same time, the District 12 Court dismissed CDCR, finding that CDCR was not subject to suit under § 1983. Id. at 13 4. The District Court screened the Complaint sua sponte as required under 28 U.S.C. 14 §§ 1915(e)(2) and 1915A(b) and found the factual allegations therein met the “low 15 threshold” for proceeding. Id. 16 On May 13, 2020, Zhang filed the instant Motion to Dismiss. It was accompanied 17 by a Request for Judicial Notice of five exhibits filed in support of Zhang’s Motion to 18 Dismiss (the “RJN”). Doc. No. 10-1. Plaintiff opposed the Motion to Dismiss on August 19 6, 2020 (the “Opposition” or “Opp.”). Doc. No. 15. Zhang filed a Reply in support of 20 his Motion to Dismiss on August 25, 2020 (the “Reply”). Doc. No. 16. 21 B. Factual Summary 22 Plaintiff is a 54-year-old male currently incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”) in San Diego County. Zhang is a medical doctor employed 24 at RJD. As alleged in the Complaint, plaintiff suffers from, inter alia, gallstones, 25 cirrhosis, Hepatitis B and C, and degenerative disc disease. Complaint at 6. These 26 conditions, as well as plaintiff’s history of multiple fractures and past orthopedic 27 surgeries, cause him chronic pain. Id. at 6-7. Attached to plaintiff’s Complaint are 28 various medical records from treatment plaintiff received at RJD for these and other 1 ailments. Id. at 14-92. These records also reveal that plaintiff has a history of using 2 and/or abusing alcohol, cocaine, marijuana, LSD and methamphetamines, and there are 3 several notes regarding possible drug diversion in the chart.3 See, e.g., id. at 13, 16, 19- 4 21, 27-28. Plaintiff’s medical records also document diagnoses of chronic paranoid 5 schizophrenia and seizure disorder. Id. at 13, 47, 52, 53. 6 The medical records attached to plaintiff’s Complaint confirm that during the 7 period April 2017 to February 2019, plaintiff was treated with morphine extended release 8 twice a day to manage his chronic pain.4 Id. at 26, 35-36, 37, 39, 41, 45, 47, 53, 55, 81. 9 A progress note dated October 2, 2017, indicates plaintiff had suffered a fall and was 10 complaining of new or worsening pain to his right leg and hip. Id. at 55. At plaintiff’s 11 request, Zhang increased plaintiff’s morphine dosage after discussing with him the risks 12 of abuse, overdose and death associated with morphine use. Id. at 56. He also 13 encouraged plaintiff to use relaxation techniques to help him manage his pain. Id. On 14 January 23, 2018 and again on April 18, 2018, Zhang discussed with plaintiff the risks of 15 abuse, overdose and death associated with morphine use, but did not discontinue 16 morphine treatment. Id. at 42, 48. 17 However, during a visit dated January 24, 2019, Zhang again expressed concern 18 over plaintiff’s continued use of morphine and planned to discontinue it. Id. at 29. 19 Zhang wrote: 20 Patient currently on morphine ER twice a day for his chronic pain. Patient 21 states that the morphine helps him with his daily activities such as showering 22 and dressing himself. Increase risk of death due to opiate abuse overdose and addiction discussed with patient. … Due to the risk of death from 23 24 25 3 “Drug diversion” is the transfer of prescription drugs to people for whom they were not prescribed. Zhang’s Motion to Dismiss refers to this behavior along with drug “hoarding.” Mot. at 8. 26

4 A note from March 27, 2017 shows plaintiff was started on a “trial” of Tylenol 3 (i.e., Tylenol with 27 codeine) for chronic pain management. Complaint at 57. However, plaintiff soon complained that the medication was “making me sick.” Id. at 81. On April 3, 2017, plaintiff was prescribed morphine 28 1 opio[i]d abuse, overdose and addiction, I will start [to] taper down his morphine at this time. 2 3 Id. at 29. Zhang ordered a tapering dose of morphine for plaintiff for the next 30 days 4 and indicated he would follow up with plaintiff thereafter. Id. at 31. 5 Plaintiff next saw Zhang on March 11, 2019. Id. at 22. Although plaintiff’s 6 primary complaint at the time was not related to his chronic pain, Zhang noted that 7 plaintiff had used morphine for his chronic pain but had “since been tapered off his 8 morphine” and “appeared comfortable” during this visit.5 Id. The “active medications” 9 list for this visit indicates that plaintiff had discontinued morphine and was taking 10 Tylenol as needed for pain at this time. Id. at 23. Zhang also noted that plaintiff’s drug 11 screen on January 31, 2019, was negative for opiates. Id. 12 Progress notes dated April 9, 2019, and April 24, 2019 indicate that plaintiff was 13 taking Tylenol (acetaminophen) as needed for pain. Id. at 16, 18-19. Zhang advised 14 plaintiff to continue doing so and instructed him to do stretching exercises. Id. at 21. On 15 May 1, 2019, plaintiff filled out a “Health Care Services Request Form,” requesting 16 “Gabapentin6 for pain.” Id. at 73. His note reads, “I’m suing you anyway so please meet 17 me [in the] hallway.” Id. In a May 14, 2019 progress note, Zhang stated that plaintiff 18 had “been on Tylenol for his chronic pain, however he is requesting a stronger 19 medication to help him with his chronic pain over his right hip as well as lower back.” 20 Id. at 13. Zhang ordered a trial of Cymbalta7 with instructions to continue Tylenol as 21 needed. Id. at 15. 22

23 5 A notation on page 28 of the Complaint reads, “Alleged drug diversion – morphine has since been 24 tapered off.” This entry appears to be a continuation of Zhang’s March 11, 2019 progress note. See 25 Complaint at 22.

6 Gabapentin is a non-opioid, anticonvulsant medication sometimes used to treat pain. See 26 https://www.drugs.com/gabapentin.html (last visited October 29, 2020). 27 7 Cymbalta (generic name duloxetine) is a selective serotonin and norepinephrine reuptake inhibitor used to treat chronic muscle or joint pain, fibromyalgia, and diabetic neuropathy, as well as anxiety and 28 1 On June 3, 2019, plaintiff submitted another “Health Care Services Request Form” 2 which stated: “I would like to get my Gabapentin back please your med you put me on 3 itsn’t [sic] working!” Id. at 76. There are no progress notes dated after May 14, 2019 4 attached to the Complaint, but other attached documents indicate that plaintiff was seen 5 again on June 13, 2019 and July 12, 2019, at which visits Tylenol and Cymbalta were 6 continued for plaintiff’s chronic pain. Id. at 86. In July 2019, an order for physical 7 therapy was also placed. Id. As of August 2019, plaintiff’s providers continued to 8 prescribe Tylenol and Cymbalta to treat his chronic pain, and plaintiff was “enrolled in 9 the Chronic Care Program.” Id. at 85-86. 10 In March 2019, plaintiff filed a healthcare grievance over the discontinuation of his 11 morphine. See id. at 3, 91. Although plaintiff’s grievance paperwork is not attached to 12 the Complaint, he did attach responses from institutional- and headquarters-level reviews. 13 Id. at 85-89. At the institutional level, after a review of plaintiff’s medical records, 14 current course of treatment, and an interview with a registered nurse during which he 15 explained his grievance, RJD’s Chief Medical Executive and Chief Executive Officer 16 determined that “[t]here is no medical indication to reinstate morphine.” Id. at 88-89. 17 The reviewers noted that “[o]pioids are not the preferred treatment for chronic pain” and 18 that, consistent with the CDC’s Guidelines for Prescribing Opioids, preferred treatments 19 included non-pharmacologic therapies and non-opioid medications. Id. at 89. Plaintiff 20 appealed this decision to the California Correctional Health Care Services Care 21 Correspondence and Appeals Branch (the “Appeals Board”), who also declined to 22 reinstate plaintiff’s morphine. Id. at 86. The Appeals Board reiterated that opioids were 23 not the preferred treatment for chronic pain and stated that “complete pain relief is not a 24 realistic goal” but that “[t]he goal is to reduce pain and improve function while avoiding 25 significant side effects and risks associated with stronger pain medications or surgery.” 26 Id. The Appeals Board concluded that there was no “staff misconduct or deliberate 27 indifference to [plaintiff’s] health care needs,” even if plaintiff disagreed with Zhang’s 28 treatment decisions. Id. 1 II. LEGAL STANDARDS 2 A. Motion to Dismiss for Failure to State a Claim 3 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 4 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To 5 survive a motion to dismiss, a complaint must plead “enough facts to state a claim to 6 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); 7 Fed. R. Civ. P. 12(b)(6). “A claim has facial plausibility when the plaintiff pleads factual 8 content that allows the [C]ourt to draw the reasonable inference that the defendant is 9 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 10 Twombly, 550 U.S. at 556). 11 In assessing whether the Complaint meets these standards, the Court may consider 12 “allegations contained in the pleadings, exhibits attached to the complaint, and facts 13 properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 14 F.3d 895, 899 (9th Cir. 2007); see also Durning v. First Boston Corp., 815 F.2d 1265, 15 1267 (9th Cir. 1987) (“If a complaint is accompanied by attached documents, the court is 16 not limited by the allegations contained in the complaint.”). The court must “accept all 17 allegations of material fact in the complaint as true and construe them in the light most 18 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 19 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). However, the Court need not 20 “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or 21 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 22 2001). Similarly, the Court is not required to assume the truth of “allegations that 23 contradict matters properly subject to judicial notice or by exhibit.” Id. “In sum, for a 24 complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and 25 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 26 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 27 (citing Twombly, 550 U.S. at 557). 28 / / 1 B. Standards Applicable to Pro Se Litigants 2 Pleadings drafted by pro se inmates such as plaintiff are “held to less stringent 3 standards than formal pleadings drafted by lawyers” and the Court must construe them 4 “liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). 5 However, in giving liberal interpretation to a pro se civil rights complaint, courts may not 6 “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of 7 Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “The plaintiff must 8 ‘allege with at least some degree of particularity overt acts which defendants engaged in’ 9 that support the plaintiff’s claim.” Jones v. Cmty. Redev. Agency of City of Los Angeles, 10 733 F.2d 646, 649 (9th Cir. 1984) (citation omitted). 11 III. DISCUSSION 12 The crux of plaintiff’s Eighth Amendment claim is that Zhang discontinued 13 plaintiff’s morphine “on an unreasonable basis.” Complaint at 6. Although Zhang 14 prescribed alternative therapies for plaintiff’s pain, plaintiff alleges that these are 15 “ineffective” and “amounted to no treatment at all.” Id. at 6, 9. Plaintiff claims that he 16 has repeatedly told Zhang that his pain is not well-controlled by anything other than 17 morphine, but Zhang has continued to refuse to prescribe morphine for him. Id. at 8-9. 18 Plaintiff asserts that Zhang has therefore been deliberately indifferent to plaintiff’s 19 serious medical needs. Id. at 7, 9-10. 20 A determination of deliberate indifference involves a two-part inquiry. See Jett v. 21 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “First, the plaintiff must show a serious 22 medical need by demonstrating that failure to treat [the] prisoner’s condition could result 23 in further significant injury or the unnecessary and wanton infliction of pain.’” Id. 24 (citation and internal quotations omitted). Second, the plaintiff must show that the 25 defendant's response to the medical need was deliberately indifferent. See id. 26 A. Plaintiff Has Adequately Alleged a Serious Medical Need 27 Plaintiff has adequately alleged the existence of an objectively serious medical 28 need. Plaintiff alleges, and Zhang does not dispute, that plaintiff’s multiple medical 1 issues cause him “chronic and substantial pain” affecting his activities of daily living. 2 See Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (noting that the “existence 3 of chronic and substantial pain” is a serious medical need) (citation omitted); Complaint 4 at 6-9. The only question for the Court, therefore, is whether plaintiff has pled adequate 5 facts to show that Zhang acted with “deliberate indifference” to plaintiff’s medical need. 6 Jett, 439 F.3d at 1096. 7 B. Plaintiff Has Not Adequately Alleged Zhang’ Deliberate Indifference 8 To establish a defendant’s deliberate indifference to a serious medical need 9 requires a plaintiff to show defendant purposefully ignored or failed to respond to a 10 prisoner’s pain or possible medical need. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 11 (9th Cir. 2015). This is a “high legal standard,” and neither inadequate treatment, nor 12 malpractice, nor even gross negligence will satisfy it. Toguchi v. Chung, 391 F.3d 1051, 13 1059 (9th Cir. 2004). Here, plaintiff alleges that despite knowing plaintiff suffers from 14 chronic pain, Zhang has discontinued plaintiff’s morphine in favor of treatments that are 15 not as effective. See Complaint at 9-10. While plaintiff states that Zhang was therefore 16 “deliberately indifferent” to plaintiff’s medical needs, see Complaint at 7-9, he must 17 plead “more than labels and conclusions” to state a plausible claim for relief. D.C. by 18 and through Cabelka v. Cty. of San Diego, 445 F. Supp. 3d 869, 880 (S.D. Cal. 2020). 19 1. Plaintiff Alleges Only a Disagreement with Zhang’s Treatment Plan 20 The documents attached to plaintiff’s Complaint show that Zhang has treated 21 plaintiff’s chronic pain with non-opioid medications such as Tylenol and Cymbalta, 22 stretching exercises, and physical therapy. Complaint at 15, 21, 28, 86. Zhang also 23 expressed a willingness to explore “other alternatives” if the medications he gave plaintiff 24 were not effective. Id. at 9. Even viewing these facts in the light most favorable to 25 plaintiff, they do not support an inference of Zhang’s deliberate indifference, but instead 26 show that plaintiff received ongoing medical care and attention to his complaints of 27 chronic pain. See Wilson v. Montgomery, No. 14-cv-1383-JAH (NLS), 2015 WL 28 12762174, at *4 (S.D. Cal. Dec. 23, 2015), report and recommendation adopted, 2016 1 WL 6804437 (S.D. Cal. Aug. 8, 2016) (noting that “providing an inmate with regular 2 treatment shows a lack of deliberate indifference”). 3 Indeed, as Zhang correctly notes, plaintiff has not alleged that Zhang “refused to 4 provide any pain medication” but instead is “critical of the specific medications 5 prescribed.” Mot. at 12 (emphasis in original). Plaintiff alleges that the Tylenol and 6 Cymbalta Zhang prescribed for his pain were “ineffective,” “cursory,” “like poison,” and 7 the equivalent of “no treatment at all,” and that morphine is “the only course of treatment 8 effective without side effects.” Complaint at 6, 8, 9. At best, these allegations state a 9 disagreement with Zhang’s treatment plan. See Joseph v. Clayton, No. 3:19-cv-2139- 10 GPC-RBM, 2020 WL 804863, at *6 (S.D. Cal. Feb. 18, 2020) (finding similar allegations 11 “boil[ed] down to a mere difference of opinion” about the proper course of treatment). 12 However, “[a] difference of opinion between a prisoner-patient and prison medical 13 authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. State of 14 Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). “[T]o prevail on a claim 15 involving choices between alternative courses of treatment, a prisoner must show that the 16 chosen course of treatment ‘was medically unacceptable under the circumstances,’ and 17 was chosen ‘in conscious disregard of an excessive risk to plaintiff’s health.’” Toguchi, 18 391 F.3d at 1058 (citations omitted); see also Rosati, 791 F.3d at 1039 (same). 19 2. Plaintiff Has Not Shown Zhang’s Treatment Was Medically Unacceptable 20 Plaintiff has not alleged sufficient facts to show that Zhang’s decision to treat 21 plaintiff’s chronic pain with Tylenol, Cymbalta, and various non-pharmacologic 22 interventions was medically unacceptable under the circumstances. Plaintiff alleges that 23 Zhang was aware that neither Tylenol nor Cymbalta controlled his pain as well as 24 morphine, making the decision to discontinue morphine “unreasonable.” Complaint at 6- 25 7; see also Opp. at 5 (stating that it was “not reasonable” for Zhang to prescribe 26 Cymbalta instead of morphine). Even if true, an unreasonable medical decision does not 27 rise to the level of deliberate indifference. Toguchi, 391 F.3d at 1060; see also Schlobom 28 v. Mountain Vista Med. Ctr., No. CV 13–1237–PHX–DGC (MEA), 2013 WL 6094630, 1 at *8 (D. Ariz. Nov. 20, 2013) (noting that “[n]ot every claim by a prisoner relating to 2 inadequate medical treatment states a [constitutional] violation”). 3 Furthermore, plaintiff’s allegation that Zhang’s treatment decisions were 4 unreasonable is undermined by documents attached to plaintiff’s complaint. Specifically, 5 plaintiff has attached decisions by the Appeals Board indicating that Zhang’s treatment 6 plan was reviewed at the institutional and headquarters levels and found to be appropriate 7 and consistent with department policy and medical guidelines. See Complaint at 85-89. 8 Based on a review of plaintiff’s grievance by RJD’s Chief Medical Executive and others, 9 it was determined that there was “no medical indication to reinstate morphine.” Id. at 89. 10 The Court is “not required to accept as true” plaintiff’s allegations that Zhang’s care and 11 treatment of him was medically unacceptable where those allegations “are contradicted 12 by documents referred to in the complaint.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 13 588 (9th Cir. 2008). The Court cannot plausibly infer that Zhang’s decision to “wean 14 plaintiff off morphine” was medically unacceptable, particularly where the documents 15 attached to the Complaint show Zhang “took other reasonable steps to abate plaintiff’s 16 pain.” See DeGeorge v. Mindoro, 2019 WL 2123590, at *7 (N.D. Cal. May 15, 2019) 17 (finding no deliberate indifference despite plaintiff’s claim that only morphine was “very 18 effective” in treating his lower back pain). 19 3. Plaintiff Has Not Shown Zhang Was Purposefully Indifferent to His Pain 20 Plaintiff has also not alleged enough facts to support an inference that Zhang’s 21 decision to discontinue plaintiff’s morphine was made in conscious disregard of an 22 excessive risk to his health. Plaintiff’s conclusory allegation in the Complaint that Zhang 23 had a financial motive for discontinuing plaintiff’s morphine does not state a claim for 24 deliberate indifference. Complaint at 8, 9 (alleging that Zhang took plaintiff off 25 morphine because it was “too expensive”); see also Opp. at 6 (stating Zhang had “money 26 reasons” for discontinuing plaintiff’s morphine). The Court is not required to credit 27 plaintiff’s allegation that Zhang’s “basis” for discontinuing his morphine was “non- 28 medical,” Complaint at 11, for which there is no factual support. See Moss, 572 F.3d at 1 969 (stating that the Court need only consider “non-conclusory ‘factual content,’ and 2 reasonable inferences from that content”) (citing Twombly, 550 U.S. at 557). 3 Plaintiff’s threadbare allegations that Zhang’s decision to cease plaintiff’s 4 morphine treatment was financially motivated are also undermined by plaintiff’s medical 5 chart from RJD. Those records – which are “part of” the Complaint8 – contain numerous 6 references to Zhang’s concerns regarding addiction and overdose, plaintiff’s history of 7 drug use, and suspicion that he was diverting or hoarding drugs. See, e.g., Complaint at 8 16, 18, 22, 24, 29, 31, 42, 56, 58. Plaintiff’s medical records also indicate that he was 9 “comfortable,” “doing well,” and in “no acute distress” at several visits after his 10 morphine was discontinued. See id. at 14, 16, 22, 23. These facts not only contradict 11 plaintiff’s allegation of Zhang’s financial motive, but support the opposite inference – 12 namely, that Zhang’s decision to taper plaintiff off morphine was made in consideration 13 of plaintiff’s medical history, physical symptoms, CDCR policies, medical guidelines and 14 the “recognized dangers of opioids.” See Mot. at 10-11. 15 In his Opposition, plaintiff claims his past drug use as documented in his RJD 16 medical records is overstated. Opp. at 3. He states that he only tried cocaine, 17 amphetamines and hallucinogenics “once” and marijuana “3 times.” Id. Although not 18 entirely clear, plaintiff appears to suggest that Zhang’s decision to discontinue plaintiff’s 19 morphine due to his history of drug abuse is pretextual. Here again, however, plaintiff’s 20 assertion is contradicted by the medical records he attached to his Complaint, which 21 indicate that he used these drugs “daily.” See, e.g., Complaint at 15, 24, 30. Plaintiff is 22 identified as having a history of “cocaine abuse” as well as methamphetamine and 23 marijuana “use” and a family history of substance abuse and dependence. See, e.g., id. at 24 13-14. The Court therefore need not credit plaintiff’s apparent suggestion of pretext, 25 because it is undermined by plaintiff’s medical records. See Lazy Y Ranch Ltd., 546 F.2d 26

27 8 See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of 28 1 at 588. And, even if the Court were to assume that plaintiff’s merely “tasted” some drugs 2 when he was young, Opp. at 3, plaintiff’s history of drug use was only one of the reasons 3 Zhang discontinued his morphine. Furthermore, plaintiff acknowledges that he received 4 alternative therapies for his pain, and documents attached to the Complaint indicate that 5 opioids such as morphine are not the “preferred” treatment for chronic pain. See 6 Complaint at 9-10, 86, 89; Opp. at 5. Thus, the facts do not support a plausible inference 7 that Zhang purposefully ignored or failed to respond to plaintiff’s pain by elected to treat 8 it with non-opioid medications and other, non-pharmacological therapies. See Rosati, 9 791 F.3d 1039. In sum, plaintiff’s Complaint establishes only that “he preferred different 10 medications than those provided” by Zhang. Goolsby v. Ridge, No. 09CV02654 WQH 11 RBB, 2011 WL 2006303, at *16 (S.D. Cal. May 23, 2011). That is not enough to state a 12 plausible claim for relief. Toguchi, 391 F.3d at 1058. 13 Based on the foregoing, plaintiff has failed to plead facts sufficient to demonstrate 14 Zhang was deliberately indifferent to his medical needs. It is therefore 15 RECOMMENDED that the District Court GRANT Zhang’s Motion to Dismiss. 16 C. Consideration of Documents Outside the Complaint 17 Both parties submit documents outside of the pleadings with their moving papers. 18 See Doc. No. 10-1 (defendant’s RJN); Opp. at 10-36 (Exhibits A-E to plaintiff’s 19 Opposition). “As a general rule, ‘a district court may not consider any material beyond 20 the pleadings in ruling on a Rule 12(b)(6) motion.’” Lee v. City of Los Angeles, 250 F.3d 21 668, 688 (9th Cir. 2001) (citation omitted). The Court addresses these documents below. 22 1. Zhang’s Request for Judicial Notice 23 Zhang requests that the Court take judicial notice of (1) a news article, (2) two 24 California Correctional Health Care Services Care Guides; (3) an entry in the Physician’s 25 Desk Reference; and (4) a report of a study of inmate deaths in California. Doc. No. 10-1 26 at 1-2. Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of 27 facts that “[are] generally known within [its] territorial jurisdiction” or “can be accurately 28 and readily determined from sources whose accuracy cannot reasonably be questioned.” 1 Fed. R. Evid. 201(b)(1) and (2). Even where these requirements are satisfied, however, 2 “judicial notice [is] inappropriate where the facts to be noticed are not relevant to the 3 disposition of the issues before the court.” Black Lives Matter-Stockton Chapter v. San 4 Joaquin Cty. Sheriff’s Office, 398 F. Supp. 3d 660, 681 (E.D. Cal 2019) (citing Ruiz v. 5 City of Santa Maria, 160 F. 3d 543, 548 n. 13 (9th Cir. 1998)). The Court declines to 6 take judicial notice of the documents referenced in Zhang’s RJN because the undersigned 7 has assessed the sufficiency of plaintiff’s Complaint without reference to them. See 8 Hayes v. Woodward, 444 F. Supp. 2d 1127, 1137 (S.D. Cal. 2006) (declining to take 9 judicial notice of documents where doing so was “unnecessary”). 10 2. Additional Medical Records Submitted by Plaintiff 11 Plaintiff attached several additional medical records to his Opposition (not attached 12 to the Complaint) purporting to show he did not have a history of drug abuse. Opp. at 10- 13 36. These consist of several drug tests taken while he was incarcerated and notes from 14 various healthcare providers indicating that plaintiff denied current or past substance 15 abuse. Plaintiff has not made a showing that these documents are properly considered by 16 the Court in the context of Zhang’s Motion to Dismiss, either by requesting that the Court 17 take judicial notice of them or establishing that they are subject to the incorporation-by- 18 reference doctrine.9 Despite the liberal treatment afforded their pleadings, “pro se 19 litigants must follow the same rules of procedure that govern other litigants.” Walker v. 20 Woodford, 454 F. Supp. 2d 1007, 1011 (S.D. Cal. 2006). 21 Here, judicial notice of plaintiff’s additional medical records would be 22 inappropriate. Plaintiff submitted the documents to attempt to establish that he is not a 23 recovering drug addict, but the Court may not take notice of matters that are subject to 24 reasonable dispute, nor can it take notice of disputed facts. Lee, 250 F.3d at 690. 25

26 9 “[I]ncorporation-by-reference is a judicially created doctrine that treats certain documents as though 27 they are part of the complaint itself. The doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken … 28 1 Likewise, the Court cannot consider the documents under the incorporation-by-reference 2 because plaintiff did not “ʻrefer[] extensively’” to them in the Complaint, nor do they 3 “ʻform[] the basis of plaintiff’s claim.’” Khoja, 899 F.3d at 1002 (citations omitted). In 4 any event, even if the Court were to consider the additional medical records plaintiff has 5 attached to his Opposition, those records do not contain any additional facts from which 6 the Court can plausibly infer that Zhang’s treatment decisions were medically 7 unacceptable or that he purposely ignored plaintiff’s pain. As such, the Court’s 8 conclusion that plaintiff’s Complaint fails to state a claim for relief remains unchanged. 9 D. Leave to Amend 10 Before dismissing a pro se civil rights complaint for failure to state a claim, the 11 plaintiff should be given a statement of the complaint’s deficiencies and an opportunity to 12 cure unless it is “absolutely clear that no amendment can cure the defect.” Lucas v. Dep’t 13 of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). The Complaint is plaintiff’s first 14 attempt at stating a claim for deliberate indifference to a serious medical need as against 15 Zhang. Although unlikely, it is possible plaintiff may be able to cure the defects 16 identified in this Report and Recommendation. Therefore, it is also RECOMMENDED 17 that the District Court GRANT plaintiff at least 30 days’ leave to amend his Complaint 18 for deliberate indifference to a serious medical need in violation of the Eighth 19 Amendment as against Zhang. 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 IV. RECOMMENDATION 2 || For the reasons set forth above, IT IS RECOMMENDED that the District Court: 3 1. GRANT Zhang’s Motion to Dismiss plaintiff's Complaint for failure to 4 state a claim upon which relief can be granted [Doc. No. 10]; and 5 2. GRANT plaintiff at least 30 days’ leave to amend his Complaint for 6 deliberate indifference to a serious medical need in violation of the 7 Eighth Amendment as against Zhang. 8 IT IS HEREBY ORDERED that no later than November 23, 2020, any party to 9 || this Action may file written objections with the Court and serve a copy on all parties. 10 || The document should be captioned “Objections to Report and Recommendation.” 1] IT IS FURTHER ORDERED that any reply to the objections shall be filed with 12 Court and served on all parties no later than December 2, 2020. The parties are 13 || advised that failure to file objections within the specified time may waive the right to 14 || raise those objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153, 15 || 1157 (9th Cir. 1991). 16 IT IS SO ORDERED. 17 ||Dated: October 29, 2020 te “iy )

19 Hori. Karen S. Crawford United States Magistrate Judge 20 21 22 23 24 25 26 27 28