Opinion
Case No. 1:16-cv-00504-JLT (PC)
09-30-2016
JUAN RODRIGUZ, Plaintiff, v. Dr. T. KOOR, Defendant.
ORDER REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
(Doc. 6)
30-DAY DEADLINE
Plaintiff alleges that Defendant Dr. K. Toor violated his rights under the Eighth Amendment and California law by not referring him for surgery as recommended by outside medical specialists. Plaintiff states a cognizable claim under the Eighth Amendment, but fails to show compliance with the California Tort Claims Act to proceed on his claims under California law. Thus, Plaintiff is being given the option to either file a second amended complaint, showing compliance with the CTCA, or to notify that he is willing only to proceed against Dr. Koor solely on his claim under the Eighth Amendment. /// A. Screening Requirement
In the caption of his original complaint, Plaintiff indicated that Defendant's name was "T. Koor." (Doc. 1, p. 1.) Based thereon, this case was automatically named "Juan Rodriguez v. T. Koor." However, in the allegations of the original Complaint as well as in the caption and allegations of the First Amended Complaint, Plaintiff indicates that Defendant's name is "K. Toor." (See Docs. 1, 6.) Thus, Plaintiff must file a statement indicating the correct spelling of Defendant's name. For purposes of this screening order, the name "K. Toor" is utilized as that is the only spelling Plaintiff utilizes in the First Amended Complaint.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three basis, a strike is imposed per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has not alleged imminent danger of serious physical injury does not qualify to proceed in forma pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015). B. Summary of Plaintiff's Allegations
All references to pagination of specific documents pertain to those as indicated on the upper right corners via the CM/ECF electronic court docketing system.
Plaintiff complains that Dr. Toor was deliberately indifferent to his serious medical need for surgical hip repair at Valley State Prison, in Chowchilla, California. Plaintiff seeks the required surgery and monetary damages.
Plaintiff alleges that Dr. Toor has been his primary care provider since Plaintiff arrived at VSP in 2012. Dr. Toor had access to Plaintiff's medical history via his Unit Health Record, which he referred to when treating Plaintiff. Plaintiff's UHR shows that he had a hip replacement in March 2011 and had four corrective surgeries from 1996 through 2003. Between April 2011 and February 2014, various CDC physicians consulted with outside specialists and obtained both x-rays and CT scans of Plaintiff's hip and the prosthesis in it all of which revealed instability and a need for surgical repair. From April 2012 to March 2014, various specialists recommended corrective surgery. Despite this, on at least five different occasions, Dr. Toor sought further consultations and outside opinions to confirm whether Plaintiff needed surgery. From January 2013 to April 2014, Dr. Toor increased Plaintiff's pain medication from Tylenol-#3 (Codeine) to Morphine and then to stronger and stronger doses of Morphine to address Plaintiff's increasing hip pain. Plaintiff alleges that, though it took a while for his surgery to be financially approved, after it was approved, Dr. Toor failed to refer him for it; rather from February 2014 to June of that same year, Dr. Toor repeatedly counseled Plaintiff to "think about it" before he would schedule it. Plaintiff submitted an inmate appeal requesting the surgery in September 2014 which was ultimately denied stating "it is [Dr. Toor's] responsibility to determine the necessity for additional follow up consultations . . . recommendations suggested by the specialist." Plaintiff's hip prosthesis is failing and Plaintiff's pain and instability is increasing while his mobility is decreasing.
As discussed in further detail below, Plaintiff states a cognizable claim under the Eighth Amendment, but fails to show compliance with the CTCA to proceed on his claims under California law. Thus, he is given the applicable standards based on his stated claims and leave to file a second amended complaint or to notify the Court that he desires to proceed on the claims found cognizable in this order. C. Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While "plaintiffs [now] face a higher burden of pleadings facts . . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
If he chooses to file a second amended complaint, Plaintiff should make it as concise as possible.
2. Linkage Requirement
Section 1983 of Title 42 of the United States Code requires there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights. /// /// /// D. Claims for Relief
1. Eighth Amendment
a. Serious Medical Needs
Prison officials violate the Eighth Amendment if they are "deliberate[ly] indifferen[t] to [a prisoner's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "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, 1081-82 (2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc))
To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must first "show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)).
"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 or substantial pain." Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff's failing hip prosthesis is accepted as serious medical needs.
Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires 'more than ordinary lack of due care for the prisoner's interests or safety.' " Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.' " Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
In medical cases, this requires 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. Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, 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." Id. (internal quotation marks omitted). Under Jett, "[a] prisoner need not show his harm was substantial." Id.; see also McGuckin, 974 F.2d at 1060 ("[A] finding that the defendant's activities resulted in 'substantial' harm to the prisoner is not necessary.").
Plaintiff's allegations that Dr. Toor failed to refer him for surgery despite knowing his hip prosthesis was failing and that specialists recommended surgical repair, in the face of Plaintiff's increasing pain and immobility, state a cognizable claim for deliberate indifference to his serious medical needs. See Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (concluding that reliance on "non-specialized" medical conclusions may constitute deliberate indifference to a plaintiff's medical needs), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc); Hamilton v. Brown, 630 F.3d 889, 897 (9th Cir. 2011) (concluding that "[d]eliberate indifference may include . . . intentionally denying or delaying access to medical care" (internal citation omitted)); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.1985) (per curiam) citing Estelle v. Gamble, 429 U.S. 97, 106 (1976).
2. Claims Under California Law
a. California Tort Claims Act
Under the California Tort Claims Act ("CTCA"), set forth in California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity unless the plaintiff first presented the claim to the California Victim Compensation and Government Claims Board ("VCGCB" or "Board"), and the Board acted on the claim, or the time for doing so expired. "The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity." Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this requirement is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) (citations omitted). Compliance with this "claim presentation requirement" constitutes an element of a cause of action for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state courts, "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id . at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted).
Federal courts likewise must require compliance with the CTCA for pendant state law claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with the claim presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).
Plaintiff fails to state any allegations which show he complied with the CTCA upon which to be allowed to pursue claims under California law in this action.
b. Intentional Infliction of Emotional Distress ("IIED")
Plaintiff alleges that Dr. Toor's conduct constituted intentional infliction of emotional distress. Under California law, the elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (quotation marks omitted); Tekkle v. United States, 567 F.3d 554, 855 (9th Cir. 2007); Simo v. Union of Needletrades, Industrial & Textile Employees, 322 F.3d 602, 621-22 (9th Cir. 2003). Conduct is outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Corales, 567 F.3d at 571; Tekkle, 511 F.3d at 855; Simo, 322 F.3d at 622
In addition to the requirement that the conduct be intentional and outrageous, the conduct must have been directed at Plaintiff or occur in the presence of Plaintiff, of whom Defendant was aware. Simo, 322 F.3d at 622. Plaintiff fails to state any allegations to meet the elements of a claim for intentional infliction of emotional distress under California Law.
Further, pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court "shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III," except as provided in subsections (b) and (c). "[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). "The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). If Plaintiff shows compliance with the CTCA and is able to state a claim under California law, any state law claims will be dismissed if/when his "federal claims are dismissed before trial." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
II. CONCLUSION
Plaintiff is given the choice to either file a second amended complaint or to proceed against Dr. Toor solely on the claim of deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. Plaintiff must either notify the Court of his decision to proceed on this cognizable claim, or file a second amended complaint within 30 days of the service of this order.
If Plaintiff chooses to file a second amended complaint, he must demonstrate how the conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific terms how each named defendant is involved. There can be no liability under section 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain statement must "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) quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 (2007) (citations omitted).
Plaintiff is further advised that an amended complaint supercedes the original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 2012) (en banc), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220.
The Court provides Plaintiff with one opportunity to amend to cure the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his second amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
Based on the foregoing, the Court ORDERS:
1. Plaintiff's Complaint is DISMISSED, with leave to amend;
2. The Clerk's Office SHALL send Plaintiff a civil rights complaint form;
3. Within 30-days from the date of service of this order, Plaintiff must either:
a. file a second amended complaint curing the deficiencies identified by the Court in this order, or
b. notify the Court in writing that he does not wish to file a second amended complaint and wishes to proceed only on the claim identified by the Court
as viable/cognizable in this order;
Plaintiff is advised that is failure to comply with this order will result in a recommendation that he be allowed to proceed only on the claims found cognizable herein and that all other claims and Defendants be dismissed. IT IS SO ORDERED.
4. Within that same time, Plaintiff must file a statement indicating Defendant's correct name.
Dated: September 30 , 2016
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE