Wyres v. Zhang

Decision Date29 October 2020
Docket NumberCase No.: 19-cv-2050-TWR (KSC)
CourtU.S. District Court — Southern District of California


Plaintiff Troy Wyres ("plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. See Doc. Nos. 1, 5. Plaintiff alleges in his Complaint that defendant Ronald Zhang, M.D. ("Zhang") was deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights.1 See Complaint at 6-11.2 Before the Court is Zhang's Motionpursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff's Complaint for failure to state a claim for relief (the "Motion to Dismiss" or "Mot."). Doc. No. 10. Pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1, the undersigned Magistrate Judge submits the following Report and Recommendation to United States District Judge Todd W. Robinson. For the reasons that follow, the Court RECOMMENDS that the District Court GRANT Zhang's Motion to Dismiss.

A. Procedural History

On October 24, 2019, plaintiff filed his Complaint and a Motion to Proceed in forma pauperis. See Doc. Nos. 1, 2. The District Court granted plaintiff leave to proceed in forma pauperis on December 30, 2019. Doc. No. 5. At the same time, the District Court dismissed CDCR, finding that CDCR was not subject to suit under § 1983. Id. at 4. The District Court screened the Complaint sua sponte as required under 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and found the factual allegations therein met the "low threshold" for proceeding. Id.

On May 13, 2020, Zhang filed the instant Motion to Dismiss. It was accompanied by a Request for Judicial Notice of five exhibits filed in support of Zhang's Motion to Dismiss (the "RJN"). Doc. No. 10-1. Plaintiff opposed the Motion to Dismiss on August 6, 2020 (the "Opposition" or "Opp."). Doc. No. 15. Zhang filed a Reply in support of his Motion to Dismiss on August 25, 2020 (the "Reply"). Doc. No. 16.

B. Factual Summary

Plaintiff is a 54-year-old male currently incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego County. Zhang is a medical doctor employed at RJD. As alleged in the Complaint, plaintiff suffers from, inter alia, gallstones, cirrhosis, Hepatitis B and C, and degenerative disc disease. Complaint at 6. These conditions, as well as plaintiff's history of multiple fractures and past orthopedic surgeries, cause him chronic pain. Id. at 6-7. Attached to plaintiff's Complaint are various medical records from treatment plaintiff received at RJD for these and otherailments. Id. at 14-92. These records also reveal that plaintiff has a history of using and/or abusing alcohol, cocaine, marijuana, LSD and methamphetamines, and there are several notes regarding possible drug diversion in the chart.3 See, e.g., id. at 13, 16, 19-21, 27-28. Plaintiff's medical records also document diagnoses of chronic paranoid schizophrenia and seizure disorder. Id. at 13, 47, 52, 53.

The medical records attached to plaintiff's Complaint confirm that during the period April 2017 to February 2019, plaintiff was treated with morphine extended release twice a day to manage his chronic pain.4 Id. at 26, 35-36, 37, 39, 41, 45, 47, 53, 55, 81. A progress note dated October 2, 2017, indicates plaintiff had suffered a fall and was complaining of new or worsening pain to his right leg and hip. Id. at 55. At plaintiff's request, Zhang increased plaintiff's morphine dosage after discussing with him the risks of abuse, overdose and death associated with morphine use. Id. at 56. He also encouraged plaintiff to use relaxation techniques to help him manage his pain. Id. On January 23, 2018 and again on April 18, 2018, Zhang discussed with plaintiff the risks of abuse, overdose and death associated with morphine use, but did not discontinue morphine treatment. Id. at 42, 48.

However, during a visit dated January 24, 2019, Zhang again expressed concern over plaintiff's continued use of morphine and planned to discontinue it. Id. at 29. Zhang wrote:

Patient currently on morphine ER twice a day for his chronic pain. Patient states that the morphine helps him with his daily activities such as showering and dressing himself. Increase risk of death due to opiate abuse overdose and addiction discussed with patient. ... Due to the risk of death fromopio[i]d abuse, overdose and addiction, I will start [to] taper down his morphine at this time.

Id. at 29. Zhang ordered a tapering dose of morphine for plaintiff for the next 30 days and indicated he would follow up with plaintiff thereafter. Id. at 31.

Plaintiff next saw Zhang on March 11, 2019. Id. at 22. Although plaintiff's primary complaint at the time was not related to his chronic pain, Zhang noted that plaintiff had used morphine for his chronic pain but had "since been tapered off his morphine" and "appeared comfortable" during this visit.5 Id. The "active medications" list for this visit indicates that plaintiff had discontinued morphine and was taking Tylenol as needed for pain at this time. Id. at 23. Zhang also noted that plaintiff's drug screen on January 31, 2019, was negative for opiates. Id.

Progress notes dated April 9, 2019, and April 24, 2019 indicate that plaintiff was taking Tylenol (acetaminophen) as needed for pain. Id. at 16, 18-19. Zhang advised plaintiff to continue doing so and instructed him to do stretching exercises. Id. at 21. On May 1, 2019, plaintiff filled out a "Health Care Services Request Form," requesting "Gabapentin6 for pain." Id. at 73. His note reads, "I'm suing you anyway so please meet me [in the] hallway." Id. In a May 14, 2019 progress note, Zhang stated that plaintiff had "been on Tylenol for his chronic pain, however he is requesting a stronger medication to help him with his chronic pain over his right hip as well as lower back." Id. at 13. Zhang ordered a trial of Cymbalta7 with instructions to continue Tylenol as needed. Id. at 15.

On June 3, 2019, plaintiff submitted another "Health Care Services Request Form" which stated: "I would like to get my Gabapentin back please your med you put me on itsn't [sic] working!" Id. at 76. There are no progress notes dated after May 14, 2019 attached to the Complaint, but other attached documents indicate that plaintiff was seen again on June 13, 2019 and July 12, 2019, at which visits Tylenol and Cymbalta were continued for plaintiff's chronic pain. Id. at 86. In July 2019, an order for physical therapy was also placed. Id. As of August 2019, plaintiff's providers continued to prescribe Tylenol and Cymbalta to treat his chronic pain, and plaintiff was "enrolled in the Chronic Care Program." Id. at 85-86.

In March 2019, plaintiff filed a healthcare grievance over the discontinuation of his morphine. See id. at 3, 91. Although plaintiff's grievance paperwork is not attached to the Complaint, he did attach responses from institutional- and headquarters-level reviews. Id. at 85-89. At the institutional level, after a review of plaintiff's medical records, current course of treatment, and an interview with a registered nurse during which he explained his grievance, RJD's Chief Medical Executive and Chief Executive Officer determined that "[t]here is no medical indication to reinstate morphine." Id. at 88-89. The reviewers noted that "[o]pioids are not the preferred treatment for chronic pain" and that, consistent with the CDC's Guidelines for Prescribing Opioids, preferred treatments included non-pharmacologic therapies and non-opioid medications. Id. at 89. Plaintiff appealed this decision to the California Correctional Health Care Services Care Correspondence and Appeals Branch (the "Appeals Board"), who also declined to reinstate plaintiff's morphine. Id. at 86. The Appeals Board reiterated that opioids were not the preferred treatment for chronic pain and stated that "complete pain relief is not a realistic goal" but that "[t]he goal is to reduce pain and improve function while avoiding significant side effects and risks associated with stronger pain medications or surgery." Id. The Appeals Board concluded that there was no "staff misconduct or deliberate indifference to [plaintiff's] health care needs," even if plaintiff disagreed with Zhang's treatment decisions. Id.

A. Motion to Dismiss for Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). "A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt 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).

In assessing whether the Complaint meets these standards, the Court may consider "allegations contained in the pleadings, exhibits attached to the complaint, and facts properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); see also Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) ("If a complaint is accompanied by attached documents, the court is not limited by the allegations contained in the complaint."). The court must "accept all allegations of material fact in the complaint as true and construe them in the light most favorable to the non-moving party." Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). However, the Court need not "accept as true allegations that are...

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