Johnson v. Ortiz

Filing 35

ORDER GRANTING 28 Motion to Dismiss ; ORDER DENYING 30 Motion to Amend the Complaint; ORDERED to DISMISS Defendants: Ortiz, Kushner, Salazar, Emler and Castillo with prejudice, Defendant Corona remains a Defendant; ORDERED that Plaintiff file an Offer of Proof on or before July 23, 2010, signed by District Judge David C. Bury on 06/24/2010. (Martin, S)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D e fe n d a n ts ' Motion to Dismiss is before the Court. In response, Plaintiff has filed h is opposition, as well as a Motion to Amend. B a c kg r ound P la in tiff Arthur L. Johnson is confined in the Correctional Training Facility in So le d a d , California. In his Third Amended Complaint, Plaintiff sued the following Defendants: Doctors O rtiz , Salazar, Kushner, Castillo, Vilaysane, and Diep; Nurse Practioners Emler and D o e h rin g; and Registered Nurse Corona. Plaintiff alleged that Defendant Corona was a u tiliz a tio n management nurse "responsible for all [Utilization Management] Review P ro c e s s in g for health care services for all prisoners at [Pleasant Valley State PrisonC o a lin ga ]. " Plaintiff alleged that the Court has federal question jurisdiction over his claim u n d e r 42 U.S.C. § 1983 and invoked the Court's supplemental jurisdiction over his state c o u rt claims of negligence/malpractice and failure to discharge a mandatory duty. vs. D r. Ortiz, et al., Defendants. Arthur L. Johnson, Plaintiff, ) ) ) ) ) ) ) ) ) ) N o . CV 1-08-1183-DCB P ORDER I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

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P la in tiff made the following allegations: 1. O n January 13, 2005, Plaintiff, after complaining about rapid h e a rt b e a t and weight loss, was seen by Defendant Ortiz. Defendant Ortiz ordered a blood test. O n February 1, 2005, Defendant Ortiz informed Plaintiff that th e blood test showed a positive result for hypothyroidism, p re s c rib e d a thyroid medication, and scheduled a follow-up a p p o in tm e n t in a month. On February 25th, Defendant Ortiz e x a m in e d Plaintiff, who had twice complained about increased h e a rt palpitations and other symptoms, and informed Plaintiff th a t he would be scheduled to see an "expert" who would p e rfo rm a thyroid scan. O n April 26, 2005, Plaintiff was taken to a hospital to see an e n d o c rin o lo gis t, but the endocrinologist was unable to conduct th e thyroid scan because prison medical staff had not informed P la in tiff that he needed to stop his thyroid medication before the s c a n . The endocrinologist advised medical staff to stop P la in tiff's medication for six weeks. O n June 13, 2005, Plaintiff was told that he would be getting a th y ro id scan. On June 15th, Plaintiff informed a nurse that he w a s experiencing severe heart palpitations, constant shortness o f breath, and fatigue. The nurse told Plaintiff that his c o m p la in ts would be reported to Defendant Ortiz. The nurse a lso informed Plaintiff that the thyroid scan appointment had b e e n cancelled by Defendant Corona. On June 17th, Plaintiff re c e ive d "lab work" and was informed that he would be started b a c k on this thyroid medication. On July 5th, Plaintiff was seen b y Defendant Ortiz, who informed Plaintiff that the results of th e June 17th lab work were not in Plaintiff's file. Defendant O rtiz told Plaintiff to "try and relax." O n August 11, 2005, Plaintiff received a thyroid scan. On Se p te m b e r 8th, Plaintiff complained of severe heart palpitations, w a s evaluated by a nurse, was informed that he potentially had c a rd ia c arrhythmia, and was returned to his cell. On September 9 th , Defendant Ortiz saw Plaintiff, informed Plaintiff that he n e e d e d to have his thyroid medication restarted, and stated that h e would review the results of the thyroid scan and would see P la in tiff "soon." O n September 16, 2005, Defendant Salazar saw Plaintiff. Plaintiff informed Defendant Salazar of his health problems, but D e fe n d a n t Salazar made no diagnosis and simply told Plaintiff to take care of himself. On October 12th, Plaintiff was s u p p o s e d to meet with Defendant Salazar to review the thyroid s c a n report, but the report had been misplaced, and Plaintiff's a p p o in tm e n t was rescheduled. O n December 12, 2005, Defendant Kushner reviewed the th y ro id scan report with Plaintiff and informed Plaintiff that he n e e d e d Ablation therapy (Ablation) and that his heart -2-

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p a lp ita t i o n s and arrhythmia were caused by Plaintiff's h y p e rth y ro id is m . O n February 16, 2006, Defendant Emler informed Plaintiff that h is thyroid was abnormally large, his uptake was abnormal, and h is palpitations were due to cardiac problems. Defendant Emler in fo rm e d Plaintiff that he would see an endocrinologist as soon a s possible and requested a thyroid uptake test for the following w e e k. O n March 3, 2006, an endocrinologist saw Plaintiff, informed P la in tiff that he needed immediate Ablation, and told Plaintiff th a t prison staff would have to "schedule the correct process so th a t Plaintiff could obtain the medication and correct treatment a n d follow up." O n March 16, 2006, Defendant Castillo met with Plaintiff. Plaintiff informed Defendant Castillo of his symptoms and informed Defendant Castillo that the endocrinologist had re c o m m e n d e d Ablation. Defendant Castillo discontinued P la in tiff's thyroid medication and prescribed a different m e d ic a tio n . He did not start Ablation. O n April 12, 2006, Defendant Castillo informed Plaintiff that D e fe n d a n t Castillo was requesting a blood test and that Plaintiff w o u l d soon be receiving Ablation. The blood test was p e rfo rm e d on May 2nd. O n June 1, 2006, Defendant Castillo saw Plaintiff, told him that h e would be given Ablation very soon based on the result of the b lo o d test, and advised Plaintiff to stop taking his medication so another test could be performed. A blood test was performed on J u l y 5th and a thyroid stimulation hormone test (TSH) was p e rfo rm e d on July 17th. O n August 3, 2006, Plaintiff saw Defendant Emler to discuss A b la tio n treatment. On August 16th, Plaintiff saw Defendant C a s tillo , complained about his symptoms, and pleaded to start re c e ivin g Ablation. O n August 24, 2006, Defendant Vilaysane saw Plaintiff, placed P la in tiff back on medication, and ordered another TSH test. On Se p te m b e r 14th, Plaintiff went to the medical department b e c a u s e his heart was racing, his vision was blurry, and he was d iz z y . A nurse informed him that he would soon be given A b la tio n . O n September 20, 2006, the endocrinologist saw Plaintiff, e x p l a i n e d that Plaintiff needed to be started on Ablation, and s ta te d that repeated consultations were unnecessary because h y p e rth y ro id is m had already been diagnosed. Plaintiff was p la c e d back on medication. O n September 26, 2006, Plaintiff saw Defendant Vilaysane to d is c u ss scheduling Plaintiff for Ablation. On October 25th, D e fe n d a n t Vilaysane informed Plaintiff that he would be seen -3-

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b y an endocrinologist soon for a followup. On November 15th, D e fe n d a n t Vilaysane told Plaintiff that he needed another TSH te st and a cardiac exam. On December 6th, Defendant V ila y sa n e explained that the TSH test results were high and that P la in tiff was at risk for a heart attack. Plaintiff explained that th e endocrinologist had stated in September that Plaintiff should h a ve been started on Ablation as soon as possible. Defendant V ila y sa n e ordered more blood tests. O n February 2, 2007, Defendant Vilaysane examined Plaintiff, to ld Plaintiff that he was scheduled to see an endocrinologist, a n d that he was suffering from anemia. Defendant Vilaysane o rd e re d more blood tests. O n February 14, 2007, Plaintiff saw the endocrinologist, who s ta te d that he was very disappointed that prison medical staff h a d not given Plaintiff Ablation and stressed that it was e x tre m e ly important for Plaintiff to have the treatment. The e n d o c rin o lo gis t recommended that Plaintiff at least restart the th y ro id medication. O n March 16, 2007, Defendant Vilaysane saw Plaintiff and told P l a in tiff that he would see the endocrinologist again soon. D e fe n d a n t Vilaysane discontinued Plaintiff's thyroid medication a fte r Plaintiff complained of hot and cold flashes. O n March 25, 2007, after complaining of constipation, c o n fu s io n , and pain, Plaintiff was seen by Defendant Diep, who o p in e d that the constipation was caused by Plaintiff's h y p e rth y ro id is m and submitted a request for Plaintiff to see an e n d o c r in o lo gis t.

O n April 12, 2007, Plaintiff saw Defendant Doehring, who re vie w e d Plaintiff's medical file and determined that he needed A b la tio n , ordered Plaintiff's test results, and prescribed a m e d ic a tio n for Plaintiff's heart palpitations. O n July 22, 2007, Plaintiff was having heart palpitations, was d ia gn o s e d with coronary ischemic arrhythmia, and received n itro gly c e rin e while en route to a medical center. At the m e d ic a l center, the doctor explained that Plaintiff was suffering fro m Bradycardia "as a result of the hyperthyroid condition that h e had been left in for years." The doctor stated that Plaintiff s h o u ld receive Ablation as soon as possible, the thyroid m e d ic a t i o n should be discontinued, and the heart palpitation m e d ic a tio n probably caused damage to Plaintiff's heart. O n July 31, 2007, Plaintiff saw Defendant Doehring and e x p la in e d that his symptoms were ongoing and that he had re p e a te d ly requested and been prescribed Ablation. Defendant D o e h rin g stated that she was doing all she could. -4-

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O n September 27, 2007, Plaintiff was seen at a radiology m e d ic a l group and was given a thyroid uptake scan. It was a ga in concluded that Plaintiff should receive Ablation as soon a s possible. O n October 3, 2007, Defendant Doering stated that Plaintiff w o u ld be getting Ablation. O n November 8, 2007, twenty-three months after Defendant K u sh n e r first informed Plaintiff that he needed Ablation, Plaintiff received Ablation.

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P la in tiff also alleged that the California Department of Corrections and Rehabilitation (C D C R ) "has a policy where a Doctor will personally diagnose a patient, prescribe m e d ic a tio n and treatment, and a CDCR committee will override the diagnosis and re c o m m e n d a tio n for medication and do so without any input or communication with an in m a te or the doctor that originally set forth a plan of treatment." P la in tiff contended that the following "cumulated into a series of incidents amounting in to countless delays, denials and intentional interferences of Plaintiff's access to qualified m e d ic a l personnel constituting deliberate indifference to Plaintiff's serious medical c o n d itio n " : (1) the actions of Defendants Ortiz and Corona from April 26, 2005 through Se p te m b e r 9, 2005; (2) the actions of Defendants Kushner, Salazar, Emler, and Castillo from Se p te m b e r 16, 2005 through August 16, 2006; and (3) the actions of Defendants Vilaysane, D ie p , and Doehring from August 24, 2006 through November 8, 2007. P la in tiff asserted that Defendants Ortiz, Corona, Kushner, Salazar, Emler, Castillo, V ila y s a n e , Diep, and Doehring (1) "failed to discharge their mandatory duty pursuant to C a lifo rn ia Government Code § 815.6, which is [to not] inflict any treatment or allow any la c k of care, . . . which would injure or impair the health of any prisoner in their custody"; a n d (2) were negligent under California law because they "failed to use such skill, prudence a n d diligence as other members of the medical profession commonly possess and exercise." T h is Court issued a service order allowing Plaintiff to proceed on an Eighth A m e n d m e n t claim against Defendant Corona and on state law claims under California G o ve rn m e n t Code § 815.6 and for negligence/malpractice against Defendants Ortiz, Corona, K u s h n e r, Salazar, Emler, Castillo, Vilaysane, Diep, and Doehring. -5-

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D IS C U SS IO N D e fe n d a n ts argue, as follows: Plaintiff failed to plead and show proof of compliance with the California's G o ve rn m e n t Claims Act which requires that a claim against a state employee b e presented to the Victim Compensation and Government Claims Board no m o re than six months after the cause of action accrues. Cal. Gov't Code § § 9 0 0 . 2 , 905, 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a timely c la im is a prerequisite to maintaining a cause of action against a public entity. C r e ig h to n v. City of Livingston, 628 F. Supp. 2d 1199, 1224-1225 (E.D. Cal. 2 0 0 9 ). To state a tort claim against a public employee, a plaintiff must allege c o m p lia n c e with the Government Claims Act. State v. Superior Court of Kings C o u n ty (Bodde) (2004) 32 Cal. 4th 1234, 1245. In general, no suit for money o r damages may be maintained against a government entity unless a formal c la im has been presented to such entity and rejected, or said claim is deemed re je c t e d by the passage of time. Gov. Code §§945.4, 945.6. Suits against p u b lic employees for actions taken in the course and scope of their e m p lo y m e n t are also subject to the requirements of the claims statute. Gov. C o d e §950.2. An employee is within the scope of his employment under the c la im s act when he is engaged in the work he is employed to perform or when h is act is incident to his duty and was performed for the benefit of his e m p lo y e r and not merely to serve his own agenda. Fowler v. Howell (1996) 42 C a l. A p p . 4 th 1746, 1750-1751. The scope of employment is viewed broadly to in c lu d e willful and malicious acts, as well as negligent acts. id. at 1751. F a ilu re to comply with the claims statute bars the claim against the public e n tity or public employee. State of California v. Superior Court (Brodde) (2 0 0 4 ) 32 Cal.4th 1234, 1239. Where compliance with the Claims Act is re q u ire d , the plaintiff must allege compliance or circumstances excusing c o m p lia n c e . Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9 th Cir. Cal. 1995). The plaintiff has the burden of pleading and proving c o m p lia n c e with the California Government Claims Act. The filing of a timely c la im is an essential element of a cause of action against a public entity or e m p lo y e e . California Government Code §§950.2, 911.2(a); Wood v. Riverside G e n e ra l Hospital (1994) 25 Cal.App.4th, 1113, 1119 (emphasis added). A lth o u gh Plaintiff asserts that he has exhausted his administrative remedies, h e did not plead or prove his compliance with the Government Claims Act. T h e Third Amended Complaint is devoid of any mention of the Act, let alone c o m p lia n c e with it and no exhibits, demonstrating compliance, are attached to th e complaint. 1 (D e fe n d a n ts ' Reply. at 3-4.) Plaintiff's failure to comply with the Government Claims Act b a rs his state law claims against the Defendants. In response, Plaintiff claims that he properly filed a claim alleging negligence on D e c e m b e r 13, 2007. Defendants, as well as the Court, will take this representation as true. Based on Plaintiff's recitation of the facts, this results in all state claims arising before June

D e fe n d a n ts ' Request for Judicial Notice is granted. -6-

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1 3 , 2007 being barred. Consequently, all state claims against Defendant Ortiz which o c c u rre d from April 26 through September 9, 2005 are barred. All state claims against D e fe n d a n t Corona which occurred from April 26 through September 2005 are barred. In a d d itio n , the state claims against Defendants Kushner, Salazar, Emler and Castillo, similarly s itu a te d , are barred. All state claims that arose against Defendants Doehring, Diep, and V ila y s a n e before June 13, 2007 are equally barred. D e fe n d a n ts have no objection to allowing Plaintiff leave to amend the Third Amended C o m p la in t to allege compliance with the Claims Act as to Defendant Doehring. The Court w ill not order an amendment, but will require the Plaintiff to file an Offer of Proof as to any n o tic e of claim filed with reference Defendants Doehring. Diep and Vilaysane. A c c o rd in gly , IT IS ORDERED that Defendants' Motion to Dismiss the state law claims against D e fe n d a n ts Corona, Ortiz, Kushner, Salazar, Emler and Castillo (Doc. No. 28) is

G R A N T E D and Defendants Ortiz, Kushner, Salazar, Emler and Castillo are dismissed from th is action with prejudice. Defendant Corona remains a Defendant as to the claim of deliberate indifference to serious medical needs. IT IS FURTHER ORDERED that Defendants' Motion to Dismiss the state law claims a ga in s t Defendant Doehring is GRANTED on all claims based on acts occurring before June 1 3 , 2007. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Amend is D E N IE D . Plaintiff should file an Offer of Proof (brief and supporting documents as a tta c h m e n ts ) on or before July 23, 2010 with the Court as to any notice of claim filed with re fe re n c e to state claims against Defendants Doehring, Diep and Vilaysane. D A T E D this 24 th day of June, 2010.

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