Wyres v. Zhang

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, ORDER DENYING 13 v. PLAINTIFF’S MOTION FOR RECONSIDERATION 14 DR. RONALD ZHANG and

CALIFORNIA DEPARTMENT OF 15 (ECF No. 56) CORRECTIONS AND 16 REHABILITATION, 17 Defendants. 18

19 Presently before the Court is Plaintiff Troy Wyres’ Motion for Reconsideration 20 (“Mot.,” ECF No. 56) of the Court’s March 29, 2022 Order (1) Overruling Plaintiff’s 21 Objection, (2) Adopting Report and Recommendation, and (3) Granting Defendant’s 22 Motion to Dismiss (“Order,” ECF No. 52), as well as Defendant Dr. Ronald Zhang’s 23 Opposition (ECF No. 58) and Plaintiff’s Reply (ECF No. 61). The Court took this matter 24 under submission on the papers without oral argument pursuant to Civil Local Rule 25 7.1(d)(1). (See ECF No. 57.) Having carefully considered the Parties’ arguments, the 26 record, and the relevant law, the Court DENIES Plaintiff’s Motion. 27 / / / 28 / / / 1 BACKGROUND 2 This Order incorporates by reference the thorough and accurate recitation of the 3 factual and procedural history set forth in the Honorable Karen S. Crawford’s Report and 4 Recommendation (“R&R,” ECF No. 46). (See id at 2–6.) 5 LEGAL STANDARD1 6 “Federal Rule of Civil Procedure 59(e) provides that a party may file a ‘motion to 7 alter or amend a judgment’ within ‘28 days after the entry of the judgment.’” Kaufmann 8 v. Kijakazi, 32 F.4th 843, 850 (9th Cir. 2022) (quoting Fed. R. Civ. P. 59(e)). “[A] Rule 9 59(e) motion is an ‘extraordinary remedy, to be used sparingly in the interests of finality 10 and conservation of judicial resources.’” Id. (alteration in original) (quoting Wood v. Ryan, 11 759 F.3d 1117, 1121 (9th Cir. 2014) (per curiam) (quoting Kona Enters., Inc. v. Est. of 12 Bishop, 229 F.3d 877, 890 (9th Cir. 2000))). 13 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 14 discovered evidence, committed clear error, or if there is an intervening change in the 15 controlling law.’” Id. (quoting Wood, 759 F.3d at 1121 (quoting McDowell v. Calderon, 16 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc))); see also S.D. Cal. CivLR 7.1(i)(1) 17 (requiring any party moving for reconsideration “to present to the judge . . . an affidavit 18 . . . setting forth the material facts and circumstances surrounding each prior application, 19 including inter alia: (1) when and to what judge the application was made, (2) what ruling 20 or decision or order was made thereon, and (3) what new or different facts and 21 circumstances are claimed to exist which did not exist, or were not shown, upon such prior 22 application”). “A party seeking reconsideration must show more than a disagreement with 23 the Court’s decision, and recapitulation of the cases and arguments considered by the court 24 before rendering its original decision fails to carry the moving party’s burden.” Arteaga v. 25 26 1 Plaintiff does not indicate whether the Motion is filed under Federal Rule of Civil Procedure 59(e) or 60(b). (See generally Mot.) Nonetheless, “[a] ‘motion for reconsideration’ is treated as a motion to alter 27 or amend judgment under Federal Rule of Civil Procedure 59(e) if it is filed within [the time period 28 permitted by the Rule.” (See Opp’n at 1 (quoting Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 1 Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1236 (E.D. Cal. 2010) (quoting United 2 States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001)). 3 “District courts have ‘considerable discretion’ in deciding Rule 59(e) motions.” 4 Kaufmann, 32 F.4th at 850 (quoting Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 5 1058, 1063 (9th Cir. 2003)). 6 ANALYSIS 7 Plaintiff’s Motion fails to “show more than a disagreement with the Court’s 8 decision,” instead merely rehashing the arguments already reviewed by both Magistrate 9 Judge Crawford and the undersigned several times. See Arteaga, 733 F. Supp. 2d at 1236; 10 (Opp’n at 2; see also ECF Nos. 41 (Plaintiff’s Opposition to Defendant’s Motion to 11 Dismiss his First Amended Complaint), 51 (Plaintiff’s Objection to Report and 12 Recommendation)). Nonetheless, the Court addresses—and rejects—each of Plaintiff’s 13 grounds for reconsideration individually on the merits.2 14 First, Plaintiff contests the Court’s statement that, “[a]s Magistrate Judge Crawford 15 explains, however, these allegations are undermined by voluminous medical records 16 Plaintiff appends in his FAC.” (See Mot. at 1 (citing Order at 5 (citing R&R at 11 (citing 17 ECF No. 26 (“FAC”) at 8, 9, 10, 12))).) The citation to pages 8, 9, 10, and 12 are to 18 Plaintiffs’ allegations in his First Amended Complaint; elsewhere in the Report and 19 Recommendation, Magistrate Judge Crawford cites to the medical records indicating that 20 Plaintiff received “treatments such as physical therapy or massage.” (See Mot. at 2; see 21 also R&R at 4 (citing FAC at 27, 42).) For example, page 27 of the First Amended 22 Complaint, as numbered by the CM/ECF system, indicates that Dr. Zhang “[a]dvised 23 24 25 2 Defendant also contends that the Motion fails to comply with this District’s procedural guidelines, (see Opp’n at 2), which require the submission of an affidavit “setting forth the material facts and 26 circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was made thereon, and (3) what new or different 27 facts and circumstances are claimed to exist [that] did not exist, or were not shown, upon such prior 28 application.” See S.D. Cal. CivLR 7.1(i)(1). Plaintiff’s Motion, however, was verified under penalty of 1 patient to continue stretching exercises/massaging the area as tolerated, also to use 2 meditation and relaxation technique for his chronic pain.” (See FAC at 27.) Consequently, 3 “such words were stated” in the First Amended Complaint. (See Mot. at 2.) Further, 4 Defendants did note in their Motion to Dismiss that “Plaintiff was . . . provided stretching 5 exercises, as well as Tylenol,” (see ECF No. 30 (MTD”) at 5 (citing ECF No. 1 at 21)), and 6 argued that “[t]he medical records attached to the Complaint reveal that the decision to 7 discontinue morphine in favor or non-narcotic medication and physical therapy was based 8 on Plaintiff’s medical history, examination, and well-accepted medical guidelines.” (See 9 id. at 8.) The Court therefore DENIES reconsideration based on Ground #1. 10 Second, Plaintiff takes issue with the Court’s reasoning that Plaintiff’s medical 11 records did not support his allegation that he sat outside the infirmary once a week to try 12 to see Defendant. (See Mot. at 2.) The main point, however, is that “Plaintiff’s original, 13 unmodified medical records indicate that he saw Defendant at least monthly during this 14 time, if not more frequently.” (See id. (quoting Order at 5.)) In short, these records do not 15 support Plaintiff’s contention that “Defendant left him to suffer on no treatment or 16 medication that was effective and adequate.” (Cf. Mot. at 3.) Rather, Plaintiff’s records 17 reveal that Plaintiff was closely monitored during the relevant period, and Dr. “Zhang’s 18 ongoing and ‘regular treatment’ of plaintiff ‘shows a lack of deliberate indifference.’” 19 (R&R at 11 (quoting Wilson v. Montgomery, No. 14-cv-1383-JAH (NLS), 2015 WL 20 12762174, at *4 (S.D. Cal. Dec. 23, 2015), report and recommendation adopted, 2016 WL 21 6804437 (S.D. Cal. Aug. 8, 2016), aff’d, 693 F. App’x 718 (9th Cir. 2017)).) The Court 22 therefore DENIES reconsideration based on Ground #2. 23 Plaintiff’s three remaining grounds for reconsideration all relate to the standard for 24 deliberate indifference. For example, as his third ground, Plaintiff contends that the “Court 25 doesn[’]t explain how it wasn’t deliberate indifference when Defendant left Plaintiff with 26 no appropriate treatment or medication to severe pain that felt like snake bites and broken 27 bones.” (See Mot. at 3.) The Court understands Plaintiff’s contention that such strong pain 28 was unacceptable but, as both Magistrate Judge Crawford and the Court previously have 1 explained, (see R&R at 9 (quoting Franklin v. State of Or., State Welfare Div., 662 F.2d 2 1337, 1344 (9th Cir. 1981))); Order at 6 (quoting Toguchi v. Chung, 391 F.3d 1051, 1058 3 (9th Cir. 2004)), Plaintiff’s disagreement with Dr. Zhang’s decision to discontinue 4 morphine in favor of alternative treatments amounts to a difference of medical opinion, not 5 deliberate indifference. In short, Plaintiff cannot allege in the face of his medical records 6 that Dr. Zhang “purposefully ignored or failed to respond to his medical needs.” (See R&R 7 at 8 (citing Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015)).) The Court therefore 8 DENIES reconsideration based on Ground #3. 9 Fourth, Plaintiff contends that it “is not a ‘disagreement of treatment’ . . . because 10 such treatment prescribed (Tylenol, physical therapy, massage, stretching) is inappropriate 11 and inadequate to bone cancer, bone fracture, and many more things that cause Plaintiff 12 [to] suffer[] severely.”3 (See Mot. at 4.) Further, “Dr. Zhang knew of the inappropriate 13 treatment and the pain & suffering but continue[d] in such course of treatment on [the] 14 basis of no[n-]medical reasons.” (See id.) As Magistrate Judge Crawford explained, 15 however, “neither inadequate treatment, nor malpractice, nor even gross negligence will 16 satisfy” the “high legal standard” for deliberate indifference. (See R&R at 8 (citing 17 Toguchi, 391 F.3d at 1060).) “Rather, plaintiff must plead facts to support the inference 18 that Zhang’s treatment choices were medically unacceptable under the circumstances and 19 made in conscious disregard of an excessive risk to plaintiff’s health and safety.” (See id. 20 (citing Toguchi, 391 F.3d at 1058).) But “prisoner-plaintiffs [do not] have the right to 21 demand specific medications and treatments,” (see id. at 9 & n.4 (collecting cases)), as 22 Plaintiff does in the First Amended Complaint. Indeed, Magistrate Judge Crawford 23 identified numerous cases in which the failure to prescribe opioids to manage pain did not 24 amount to deliberate indifference. (See R&R at 9 & n.4.) The Court therefore DENIES 25 reconsideration based on Ground #4. 26

27 3 Neither Plaintiff’s First Amended Complaint nor his medical records indicate that he was being treating 28 for bone cancer during the relevant period. Rather, Plaintiff alleges that he had a history of pelvic, right 1 Finally, Plaintiff “want[s] to say that although Dr. Zhang put on his computer that 2 ||he was telling [Plaintiff] to exercise, called for physical therapy & massage, such actions 3 ||shouldn’t justify his actions of leaving [Plaintiff] in pain & suffering.” (See Mot. at 5.) 4 ||This argument is cumulative of Plaintiffs prior arguments, and the Court therefore 5 || DENIES reconsideration based on Ground #5 for the same reasons 6 CONCLUSION 7 For the above reasons, the Court DENIES Plaintiff's Motion for Reconsideration 8 (ECF No. 56) of the Court’s March 29, 2022 Order (1) Overruling Plaintiff's Objection, 9 ||(2) Adopting Report and Recommendation, and (3) Granting Defendant’s Motion to 10 || Dismiss (ECF No. 52). 1] IT IS SO ORDERED. 12 || Dated: September 28, 2022 — I [5 14 bre 14 Honorable Todd W. Robinson United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28