NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH SMITH, No. 14-15004
Plaintiff - Appellant, D.C. No. 1:12-cv-01222-SKO
v.
MEMORANDUM*
JEFFREY WANG; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Submitted December 11, 2015**
San Francisco, California
Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.
Joseph Smith appeals the district court’s dismissal of his 42 U.S.C. § 1983
action alleging deliberate indifference to his serious medical needs. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and review the denial of leave to amend
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for an abuse of discretion. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en
banc). We affirm.
The district court did not abuse its discretion by dismissing the first amended
complaint without granting leave to file a second amended complaint because the
deficiencies in the first amended complaint cannot be cured by amendment. Id. At
most, Smith states a negligence claim against the surgeon, which does not rise to
the level of deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976);
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
Nor can Smith amend to state a claim against the prison doctors. Smith only
alleges a difference of opinion regarding treatment, not deliberate indifference.
Toguchi, 391 F.3d 1059-60. Moreover, the documents attached to Smith’s
complaints contradict any conclusory allegations that the prison doctors refused to
provide or delayed treatment. Wilhelm v. Rotman, 680 F.3d 1113, 1116 n.1 (9th
Cir. 2012) (exhibits attached to the complaint may be considered to decide whether
dismissal is proper); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (conclusory
allegations not supported by factual allegations do not state a plausible claim).
AFFIRMED.
2
FILED
Smith v. Wang, No. 14-15004
DEC 28 2015
BEA, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority correctly concludes that the deficiencies in the first amended
complaint (“FAC”) as to defendants Yu and Paik cannot be cured by amendment;
the documents submitted by Smith rebut the claim against Drs. Yu and Paik.
However, I would reverse and remand as to Smith’s claim against Dr. Wang.
The FAC alleged that in February, 2011, less than a month after Smith’s January
26, 2011 knee-replacement surgery:
Exactly at the point where the pain was at [its]
wors[t], Plaintiff’s medication was suddenly
unavailable to him. . . . Plaintiff [requested] that he
be seen by the Facility M.D. (at that time,
defendant Wang) to have his leg and knee
examined for the swelling . . . . On February 16th,
2011, Plaintiff was ducated to [a medical facility]
to see the RN (Registered Nurse) regarding the
[form] he’d submitted to have his leg & knee
examined, and his medication for pain renewed.
Plaintiff was screened by the RN on duty who, in
turn, contacted defendant Wang. The RN advised
. . . that defendant Wang refused to see Plaintiff, to
either take a look at the knee, or renew pain
medication.
Smith submitted documents that show that after he filed a health-care appeal, he
eventually received an in-clinic evaluation on April 13, 2011, at which point a
nurse practitioner made note that Smith was prescribed pain medication through
1
May 20, 2011. However, the documents do not establish that Smith received this
unnamed medication from the time of his January surgery to the April 13, 2011
appointment. Smith alleged that he ran out of pain medication. The documents
can be read to state that at his April 13, 2011 consultation, Smith was prescribed
the unnamed medication, good through May 20, 2011. Under this interpretation,
Smith was without pain medication for two months, from February to April 13,
2011.
Even if Smith did receive the unnamed medication continuously after his
surgery, the documents still do not establish that Smith was receiving adequate
pain medication, such as morphine or Salsalate, both of which Smith received at
some point between February and July 2011. The unnamed medication may have
been Motrin, to which other documents submitted by Smith refer. The documents
submitted show that Smith consistently complained that Motrin was inadequate to
treat his pain and that he needed stronger pain medication which he did not receive
and which Dr. Wang refused to prescribe.
A medical need is serious if failure to treat it will result in significant injury
or the unnecessary and wanton infliction of pain. Peralta v. Dillard, 744 F.3d
1076, 1082 (9th Cir. 2014) (en banc) (internal quotations omitted). A prison
official is deliberately indifferent to that need if he knows of and disregards an
excessive risk to inmate health. Id. According to the allegations of the FAC, Dr.
2
Wang knew that Smith had undergone major surgery and refused to see Smith
when Smith complained of pain. Nothing in the documents submitted rebuts
Smith’s allegation that he was not receiving adequate pain medication as of
February 16, 2011, nor that Dr. Wang simply refused to treat him. As Dr. Wang
could prescribe medication, Smith has alleged facts sufficient to state a plausible
claim for relief for Dr. Wang’s alleged deliberate indifference. Mere failure to
prescribe adequate pain medication may state only a claim in negligence. But we
must accept Smith’s allegations as true except to the extent that they are rebutted
by the documents he submitted. When it is alleged that the attending physician
refused to see the patient and refused to renew pain medication, absent evidence
that the physician was exercising his medical judgment, a claim has been stated
that the physician was deliberately indifferent. At this stage, that is all that is
required. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
3