Sekerke v. Leo

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA KEITH WAYNE SEKERKE, Case No.: 3:19-cv-0034-GPC-RBB Booking No. 18165284, ORDER GRANTING IN PART AND Plaintiff, 13 DENYING IN PART DEFENDANTS’ vs. MOTION TO DISMISS PORTIONS OF PLAINTIFF’S SECOND 15 AMENDED COMPLAINT AND ARTURO LEON; MARK O’BRIEN; VACATING HEARING JON MONTGOMERY; DANE OLSEN and COUNTY OF SAN DIEGO, [ECF No. 58] 18 Defendants.

20 Before the Court is Defendants Arturo Leon and Mark O’Brien’s motion to dismiss Plaintiff’s First, Second, Third, and Fifth claims for relief in the Second Amended Complaint (ECF No. 54, “SAC”). ECF No. 58. Plaintiff filed an opposition on March 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 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 lawsuit. ECF No. 1. Plaintiff currently resides in San Diego County Jail. On February 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 Leo”), Mark O’Brien (“O’Brien”), and Sheriff William Gore. ECF No. 7 (“FAC”). In the FAC, Plaintiff argued that his right to medical care had been violated due to Defendants’ policy of refusing to provide narcotics to inmates. Id. 6 On August 14, 2019, Plaintiff filed a motion to join defendants Medical Administrator Barbara Lee, Deputy Olsen, Sergeant A. Sevilla, and Lieutenant Laura Coyne. ECF No. 21. On September 9, 2019, Plaintiff filed a motion for joinder of new claims and therein only named as defendants, Arturo Leon, Mark O’Brien, and Barbara Lee. ECF No. 26. On October 9, 2019, Plaintiff also filed an Ex Parte Notice of Retaliation and Request for Duplicate Orders requesting, inter alia, duplicate copies of all filings and court orders since July 2019. On October 11, 2019, the Court granted Plaintiff’s request for copies, denied Plaintiff’s motions for joinder of new claims and new defendants, and directed Plaintiff to file a motion for leave to file a second amended 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 Amended Complaint (“SAC”). ECF No. 35. The SAC named Dr. Arturo Leon (“Dr. Leon”) and Dr. Mark O’Brien (“Dr. O’Brien”), as defendants and sought to add as new defendants, Jon Montgomery (“Montgomery”) and Dane Olsen (“Deputy Olsen”). The 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 treatment) against Dr. Leon; (3) Inadequate medical care – Denying Prescription against Drs. Montgomery and O’Brien; (4) State Supplemental Medical Claims against Dr. Leon; (5) Personal Injury against Dr. Leon; (6) Retaliation against Deputy Olsen; and (7) Liability of San Diego County based on all other Defendants being agents, employees, or co-conspirators.

27 Due to a clerical error, the motion seeking permission to file a SAC was initially processed by the Court as a filed SAC and summonses were issued. ECF No. 35. On December 10, 2019, the Court issued a minute order correcting the error. As a result, the summonses issued on November 27, 2019 were withdrawn from the docket. On December 20, 2019, the U.S. Marshals personally served Dr. Montgomery with a copy of the summons withdrawn by the December 10, 2019 order. ECF Nos. 36-37. On December 19, 2019, Deputy Olsen was served by mail with a copy of the withdrawn summon. On January 7, 2020, Montgomery and Olsen filed a motion to quash service of the summonses. ECF No. 45-1.

8 On February 10, 2020, the Court granted the motion to quash as to Defendants Olsen and Montgomery, and directed that the Clerk of Court issue a new summons as to all the named Defendants in the SAC. In addition, the Court granted the motion to amend as to Counts One, Two, Three, Five, Six and Seven, subject to certain limitations and denied it as to Count Four.1 II. Factual Background 14 The factual background has been recited at length in prior orders.2 In brief and most relevant part, Plaintiff arrived at San Diego County Jail on October 11, 2018. In Count One, Plaintiff alleges that all Defendants are practicing a blanket policy of “no narcotic pain medication in violation of the Eighth Amendment.” SAC at 3.3 Plaintiff alleges that, after his arrival, Plaintiff’s pharmacy faxed Plaintiff’s prescriptions to the jail but Plaintiff was never provided with his prescription medication. Id. at 9. Plaintiff argues that there is “no penological purpose” for this policy and that “[s]uch a blanket policy is unconstitutional.” Id. at 4.

1 The Court also denied Plaintiff’s motion for a temporary restraining order and emergency injunction, 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 at 17-18.

2 The factual background is recited in the Court’s prior orders denying Plaintiff’s motions to join 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).

1 In the SAC, Plaintiff alleges that he was denied medical care between October and November of 2018 based on the following allegations: (1) Plaintiff developed MRSA4 infection within a day of arriving to jail facility (Count Two); and (2) Plaintiff has been 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 “suffered severely”; his “sleep is denied”; and “often times can’t even focus on reading a book due to the pain.” Id. Plaintiff states that his “[d]aily activities such as putting on clothes, cleaning, and showering can not be done without suffering through severe pain” and that his “blood pressure has dramatically increased.” Id. Plaintiff also alleges that he suffers from cervical and spinal stenosis, degenerative disk disease, scoliosis, and severe 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 medical on the basis of denial of prescription medication (Count One) as described above, and for failure to provide Plaintiff with treatment for the MRSA infection (Count Two). With respect to the MRSA infection, Plaintiff alleges that his infection worsened for three months until November 30, 2018 when a judge ordered Plaintiff to be seen by a medical professional. Id. at 6. Plaintiff alleges that due to Dr. Leon’s failure to provide treatment, Plaintiff has sustained a permanent black scar on his ankle and permanent feelings of a “numb-like sensation to the touch that sends a minor painful sensation to the foot.” Id. at 6.

22 Plaintiff also brings a personal injury claim against Dr. Leon for refusing to taper Plaintiff off his opioid pain management medications (Count Five) which caused Plaintiff to suffer from extreme withdrawal symptoms and to collapse and hit his head on a steel 4 The Merriam-Webster online dictionary defines "MRSA" to mean "methicillin-resistant Staphylococcus aureus." Merriam-Webster, https://www.merriam-webster.com/dictionary/MRSA (last door on November 5, 2018. Id. at 9. Plaintiff alleges that the Physician Desk Reference (“PDR”) book warns users of his pain management medication, Lyrica, to “[a]void abrupt withdrawal. Gradually taper over 1 week.” Plaintiff further alleges that the PDR also warns against abrupt withdrawal from his morphine medication. Id. at 9.

5 Plaintiff also alleges that Leon prescribed nonsteroidal anti-inflammatory drug (“NSAID”) medication which Plaintiff alleges subjected Plaintiff’s liver and kidneys to 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 to no avail and that the Defendants (Dr. Leon and Dr. O’Brien) are practicing a blanket policy of no narcotic pain medication in violation of the Eight Amendment. Id. at 7. In Count Three, Plaintiff alleges that Dr. O’Brien is a jail medical officer and has continued to deny him the treatments ordered by the jail physician. Id.5 III. Discussion 15 Defendants Dr. Arturo Leon (“Leon”) and Dr. Mark O’Brien (“O’Brien”) argue that Plaintiff’s First, Second, Third, and Fifth Causes of Action fail to state a claim and 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 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required only to set forth a “short and plain statement of the claim showing that the pleader is Plaintiff also alleges (1) a retaliation claim against Deputy Olsen, claiming that Deputy Olsen placed 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, entitled to relief,” and “give the defendant fair notice of what the ... claim is and the 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 allegations as true, it contains enough facts to “state a claim to relief that is plausible on 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 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged in the complaint, and draws all reasonable inferences in favor of the plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).

16 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’ ” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 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 punishing by incarceration,’ and failure to meet that obligation can constitute an Eighth Amendment violation cognizable under § 1983.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). The motivating principle underlying this obligation is the belief that the public “be required to care for the prisoner, who cannot by reason of the 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 plaintiff must show deliberate indifference to his serious medical needs.” Id. (internal citations omitted). “This includes both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment—and a subjective standard— deliberate indifference.” Id. (internal citations omitted).

8 To meet the objective element of the standard, a plaintiff must demonstrate the existence of a “serious medical need.” Estelle, 429 U.S. at 106. Such a need exists if failure to treat the injury or condition “could result in further significant injury” or cause “the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “Indications that a plaintiff has a serious medical need include 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.” Colwell, 763 F.3d at 1066 (internal citations omitted).

17 The subjective element of the standard is satisfied by showing “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. Deliberate indifference “may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). “In deciding whether there has been deliberate indifference to an inmate's serious medical needs, we need not defer to the judgment of prison doctors or administrators.” Hunt v. Dental Dep't, 865 F.2d 198, 200 (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 Plaintiff with morphine in order to treat Plaintiff’s opioid addition withdrawal symptoms and Dr. Leon’s prescription of NSAID medication that Plaintiff alleges aggravated his gastrointestinal condition. As against Dr. O’Brien, Plaintiff alleges that he wrote letters addressed to Dr. O’Brien to no avail and alleges in a conclusory fashion that Dr. O’Brien 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 sufficiently allege both requisite prongs for deliberate indifference: (1) the purposeful act or failure to respond to a prisoner’s pain or possible medical need and (2) the harm caused by the indifference.

9 On the first prong, a purposeful act or failure to respond, Dr. Leon argues that Plaintiff’s complaints about Dr. Leon – i.e., prescribing Plaintiff NSAID medication and refusing to taper Plaintiff off morphine are insufficient to show deprivation of medical care – because they show that Dr. Leon actually did respond to and address Plaintiff’s medical needs, and therefore disprove the allegation that Dr. Leon committed a purposeful act or failed to respond to a prisoner’s pain or possible medical need. Plaintiff counters that Defendants did not respond reasonably to the risk since his pharmacy faxed over “6 months worth of prescription records” to the prison. ECF No. 65 at 6.6 Plaintiff also alleges that Defendants have Plaintiff’s medical records from “Family Health Center as well as past medical records proving [his] severe medical conditions.” ECF No. 65 at 10. Based on this, Plaintiff argues that Defendants were aware that Plaintiff was receiving opioid pain management and were also aware “of how long Plaintiff had been on opioid pain management” and that insured “FDA guidelines” and standard medical care mandate the tapering of any patient’s opioid medication to address withdrawal symptoms. Id. 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 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 1 On the second prong, harm caused by deliberate indifference, Dr. Leon contends that Plaintiff has failed to establish any causal relationship between Dr. Leon’s actions and his harm. On the refusal to provide Plaintiff with morphine, Defendants allege that Plaintiff has failed to establish that Dr. Leon caused Plaintiff “harm separate from the underlying pain caused by his preexisting conditions.” ECF No. 58-1 at 6. However, the crux of Plaintiff’s argument is that Dr. Leon’s refusal to prescribe Plaintiff morphine to ease his opioid addiction withdrawal symptoms has led to his deterioration in health because the morphine would have alleviated the pain caused by his preexisting conditions. Additionally, Plaintiff has sufficiently alleged harm in arguing that he has “suffered withdrawals and was sent to the ER multiple times” and also has suffered a “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 plaintiff’s claims where he alleged that the prison doctors were deliberately indifferent to his medical needs in light of his fractured thumb. The Ninth Circuit found that “deliberate indifference” could still exist even where prison doctors ordered x-rays, 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 might have been aware of aftercare instructions but did not follow them. Id. at 1097. At this time, it would be premature to dismiss Plaintiff Sekerke’s claims with respect to the 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 court dismissal was premature where incarcerated plaintiff alleged that prison officials denied prescribed medication for his opioid addiction).

24 Dr. Leon argues that Plaintiff’s claims should be considered in the context of “medical malpractice,” rather than deliberate indifference, citing Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). However, in Estelle, the Supreme Court focused on the “inadvertent” or “accidental” nature of the prison officials’ actions. Id. at 105-106. The Estelle plaintiff had been prescribed multiple medications for pain related to his lower back injury, but his prescription was not filled because the prison staff officials lost his prescription. Id. at 100. Here, Sekerke’s allegations target Dr. Leon’s actions that were not inadvertent or accidental, but instead, were deliberately undertaken in accordance 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 provide morphine.

8 On the question of the provision of the NSAID medications, Dr. Leon argues that Plaintiff has not shown how this caused him pain. Plaintiff alleges that the prescription of NSAID medications is “so below the standard of care that it amounts to no treatment at all.” ECF No. 65 at 7. Plaintiff does not argue that the provision of NSAID medications amounts to deliberate indifference, but rather, that it falls short of the requisite standard of care. Therefore, while the provision of NSAID medication may provide relevant factual background, Dr. Leon’s actions in providing NSAID medication are not 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 present himself as “Dr. Jose Jiminez,” the Court finds that Plaintiff has not alleged how this might have caused any harm. As such, Plaintiff’s theory of liability based on this allegation is insufficient and the motion to dismiss this theory is GRANTED with prejudice.

21 As to Dr. O’Brien, the two bare allegations against him are so vague that they do not reveal a purposeful act or failure to respond that led to Plaintiff’s harm caused by 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 provide Plaintiff with any treatment for the MRSA infection that plaintiff contracted “within a day of arriving” to the jail. SAC at 6. Dr. Leon argues that Plaintiff’s second cause of action should be dismissed because it is an “impermissible attempt to transform 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, Dr. Leon argues that MRSA treatment is not a serious medical need since it does not significantly affect his activities or create chronic and substantial pain. On the second prong, harm caused by deliberate indifference, Defendants argue that Plaintiff has not established a causal relationship and his allegations are too conclusory to establish that Dr. Leon’s conduct somehow contributed to the worsening of Plaintiff’s condition. The Court disagrees. Plaintiff alleges that his infection worsened over the course of the three months that elapsed before he was able to get adequate treatment and that the delayed treatment caused a permanent black scar and permanent damage (i.e., a “numb-like sensation to the touch that sends a minor painful sensation to the foot). SAC at 6. At this time, dismissing Plaintiff’s claims would be premature. See Jett, 439 F.3d at 1096 (9th 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, and so, on this basis, has failed to preserve his argument for appeal citing Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006). However, Walsh is inapplicable since there the plaintiff failed to plead her claim in her complaint. Further, the Walsh court explained that “no bright line exists to determine whether an issue has been properly raised below, but a workable standard is that the issue must be raised 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 infection was properly raised before the trial court and Dr. Leon’s motion to dismiss is DENIED.

25 3. Third Cause of Action 26 The third cause of action is brought against Dr. O’Brien and against non-movant Defendant Jon Montgomery. Plaintiff primarily brings his allegations against Montgomery for his alleged instructions to jail physicians to uphold the jail policy of refusing to prescribe any narcotic pain medication for incarcerated individuals. With respect to O’Brien, Plaintiff only states: “Defendant Jon Montgomery and Mark O’Brien continue to deny the treatments ordered by the jail physician.” SAC at 9. Defendants argue that this allegation is too “vague” to be sustained since Plaintiff has alleged neither a serious medical need nor causation. The Court agrees with Defendants and finds that Plaintiff has failed to allege sufficient facts with respect to Dr. O’Brien and GRANTS 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. Leon for refusing to taper Plaintiff off his opioid pain management medications, since, as a result, Plaintiff suffered from extreme withdrawal systems and on November 5, 2018, Plaintiff collapsed and hit his head on a steel door. Id. at 9. Paramedics were called and 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 professional negligence which requires that a plaintiff establish that a duty of care was owed, the breach of such duty, a causal connection between alleged breach and claimed injury, and actual damage. See Hanson v. Grode, 76 Cal. App. 4th 601, 606 (1999).7 Plaintiff does not address this argument in his opposition. Construing Plaintiff’s claim as one for professional negligence, Plaintiff has failed to sufficiently allege what duty Defendants have allegedly breached.

21 While the court “ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential Defendant cites California Code of Civil Procedure Section 340.5(2), which does not list the elements 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 1 elements of claims that were not initially pled.” Ivey v. Board of Regents of the || 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 ||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 ||injury or professional negligence. As such, Defendants’ motion to dismiss the fifth cause ||of action is GRANTED.

8 d. Conclusion 9 In sum, the Court hereby GRANTS DR. O’Brien’s motion to dismiss the first and || 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 || action without leave to amend. The Court DENIES Dr. Leon’s motion to dismiss the || first cause of action as to the failure to provide morphine theory of recovery and the || second cause of action.® 15 IT IS SO ORDERED.

16 Dated: April 15, 2020 <= (Qr2atlo CE LE 17 Hon. Gonzalo P. Curiel 18 United States District Judge 24 SSS Tn his opposition, Plaintiff improperly attaches a separate motion for a court order to provide Plaintiff || 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 County of San Diego would be the proper party to address this issue and it is not clear whether the 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.