Herrera v. Rouch

Filing 88

FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion to Dismiss 32 be DENIED re 32 MOTION to DISMISS filed by Rouch ; referred to Judge O'Neill,signed by Magistrate Judge Michael J. Seng on 9/15/14. Objections to F&R due by 10/3/2014 (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERTO HERRERA,

12

Plaintiff,

13

v.

14

ROUCH,

15

Defendant.

18
19

I.

FINDINGS AND RECOMMENDATIONS
DENYING DEFENDANT‟S MOTION TO
DISMISS
(ECF No. 32)

16
17

CASE No. 1:13-cv-00289-LJO-MJS

OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

PROCEDURAL HISTORY
Plaintiff Roberto Herrera, a state prisoner proceeding pro se and in forma

pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 27, 2013.

20
21
22
23

(ECF No. 1.) The action proceeds on Plaintiff‟s Second Amended Complaint against
Defendant Rouch for deliberate indifference to a serious medical need in violation of the
Eighth Amendment. (ECF No. 18.)

24

Defendant moved to dismiss the case on the grounds that: it states no cognizable

25

claim; that Defendant is, in any event, protected from liability on such claims by the

26

doctrine of qualified immunity; and, that Plaintiff had failed to exhaust his administrative

27
28
1

1

remedies. The last of these three grounds was withdrawn. 1 (ECF No. 32.) Plaintiff filed

2

an opposition (ECF No. 36), Defendant replied (ECF No. 37), and Plaintiff filed a surreply

3

(ECF No. 38).2 Defendant‟s motion to dismiss for failure to state a claim and on grounds

4
of qualified immunity is now before the Court.
5
6

II.

LEGAL STANDARD

7

A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of

8

a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the

9

absence of sufficient facts alleged under a cognizable legal theory. Conservation Force

10
11

v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations
omitted), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court‟s

12
13
14

review is generally limited to the operative pleading.

Daniels-Hall v. National Educ.

Ass‟n, 629 F.3d 992, 998 (9th Cir. 2010).

15

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

16

accepted as true, „to state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal,

17

556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

18
19

(2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw

20
21
22
23
24
25
26
27
28

all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998,
1

On April 3, 2014 the United States Court of Appeals for the Ninth Circuit determined in Albino v. Baca,
747 F.3d 1162, 1168 (9th Cir. 2014) that an unenumerated Rule 12(b) motion was no longer the proper
procedural device for raising the issue of exhaustion. On June 18, 2014, Defendant filed a notice
acknowledging Albino and requesting that the Court convert the unenumerated Rule 12(b) portion of the
Motion to Dismiss, regarding exhaustion of administrative remedies, into a motion for summary judgment.
(ECF No. 65.) Alternatively, Defendant asked that she be permitted to withdraw the unenumerated 12(b)
portion and be granted leave to file a motion for summary judgment based on exhaustion of administrative
remedies. (Id.) The Court declined to convert the exhaustion argument and granted Defendant‟s
alternative request to withdraw that section. (ECF No. 78.) The arguments that Plaintiff‟s allegations fail
to state a claim and that Defendant is entitled to qualified immunity were not withdrawn and so are
addressed in this order.
2
Plaintiff‟s unauthorized surreply exclusively addresses Defendant‟s withdrawn exhaustion arguments, is
irrelevant to the present motion, and was not considered in analyzing this motion.

2

1

and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed

2

and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121

3

(9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di

4
Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
5
6
7

2010).
III.

PLAINTIFF’S CLAIMS

8

The Second Amended Complaint alleges essentially as follows:

9

Plaintiff has a medical condition that required the implantation of metal devices

10
11

into one of his legs. The condition and implants cause chronic pain that worsens in cold
weather. On February 15, 2013, Plaintiff approached health care staff member Rouch

12
13
14

and requested a chrono for thermal underwear.

He also mentioned that his pain

medication was not effective. Defendant Rouch refused to do anything for Plaintiff‟s

15

pain, stating “„there is nothing I can do for you.‟” Rouch then left Plaintiff in “severe pain

16

and suffering.” Plaintiff has yet to receive treatment. (ECF No. 17 at 3.)

17

IV.

18
19

ARGUMENTS
A.

Defendant’s Motion to Dismiss

Defendant argues that Plaintiff‟s allegations do not establish the essential

20
21

elements of an Eighth Amendment medical care claim: (1) deliberate indifference to an

22

inmate‟s (2) serious medical needs. Defendant contends that Plaintiff‟s description of his

23

medical need is too vague to state a claim.

24

Defendant, the amended complaint uses the phrase “a medical condition” in such a

25

manner as to leave it unclear whether Plaintiff is referring to his chronic pain or

26
27

(ECF No. 32 at 12.)

According to

something else entirely.
The motion also asserts as follows: Plaintiff‟s allegations do not rise to the level of

28
3

1

deliberate indifference.

2

asked Defendant for a medical chrono authorizing thermal underwear and told

3

Plaintiff never described his medical condition.

Instead, he

Defendant that his current pain medication was ineffective. The amended complaint

4
does not allege that Defendant was actually aware of any excessive risk of harm to
5
6

Plaintiff.

(Id. at 13.)

The Court‟s first two screening orders found Plaintiff had not

7

satisfied the deliberate indifference standard because the facts alleged did not provide

8

enough context to determine whether Defendant acted knowingly. Defendant argues

9

that that deficiency was not corrected in the Second Amended Complaint. (Id. at 13-14.)

10
11

Finally, Defendant contends that qualified immunity applies because Plaintiff has
not sufficiently alleged that Defendant‟s conduct violated a constitutional right.

The

12
13
14

Second Amended Complaint does not establish that Defendant, a nurse practitioner, had
the authority to do anything under the circumstances. Therefore, a reasonable official in

15

the same situation would not have believed the Defendant‟s conduct was unlawful. (Id.

16

at 14-15.)

17

B.

18

Plaintiff opposes Defendant‟s assertion that the Second Amended Complaint fails

19

Plaintiff’s Opposition

to state a claim by citing to the Court‟s contrary finding in its screening order. (ECF No.

20
21

36 at 2-3.) Plaintiff does not address the qualified immunity issue.
Defendant’s Reply

22

C.

23

Defendant argues that the Court is not bound to the findings of its screening order

24

but has an obligation to dismiss this action any time it concludes the operative pleading

25

fails to state a claim. The reply reiterates that Plaintiff‟s allegations failed to identify a

26

sufficiently serious medical need and did not establish that the Defendant knowingly

27
disregarded such a need. (ECF No. 37 at 7.)
28
4

1
2
3

V.

ANALYSIS
As noted, to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its

4
face.'" Iqbal, 129 S.Ct. at 1949 (2009) (quoting Twombly, 550 U.S. at 555); Moss, 572
5
6

F.3d at 969. This is the exact same standard which the Court applies in screening a pro

7

se prisoner complaint to determine, prior to allowing it to be served, whether it states a

8

cognizable claim.

9

evaluating Plaintiff's Second Amended Complaint, and it was that review which lead to

10
11

Indeed, it was that very standard which this Court applied in

the Court's conclusion that the amended complaint did state cognizable claims, i.e., the
Court found that Plaintiff made claims which, when taken as true for pleading purposes,

12
13
14

would survive a Rule 12(b)(6) motion.
Nothing has since changed.

15

Nevertheless, Defendant argues that the very pleading which this Court found

16

stated a cognizable claim does not state a cognizable claim and should be dismissed

17

pursuant to Rule 12(b)(6). The Court would prefer not to duplicate its efforts and explain

18
19

again why it reached the conclusions it did on screening, but the present Motion to
Dismiss effectively asks it to do so. Accordingly, the Court will here address the

20
21

substantive issues presented by Defendant‟s motion.

22

1.

23

While the Eighth Amendment of the United States Constitution entitles Plaintiff to

24

medical care, it is violated only when a prison official acts with deliberate indifference to

25

an inmate‟s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir.

26
27

Failure to State a Claim

2012); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d
1091, 1096 (9th Cir. 2006).

Plaintiff “must show [1] a serious medical need by

28
5

1

demonstrating that failure to treat [his] condition could result in further significant injury or

2

the unnecessary and wanton infliction of pain,” and (2) that “the defendant‟s response to

3
4

the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d
1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act or

5
6
7

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 (citing Jett, 439 F.3d at 1096).

8

Defendant argues the factual allegations in the Second Amended Complaint do

9

not establish that Plaintiff presented a serious medical need or that Defendant knowingly

10
11

disregarded a risk of harm to Plaintiff. The Court disagrees. The Second Amended
Complaint is brief and the allegations are not always precise. Nevertheless, the claim is

12
13
14

essentially straightforward.
Plaintiff alleged that he suffers from chronic pain and that metal implants in his leg

15

cause additional pain in cold weather. At the pleading stage Plaintiff is not required to

16

be more specific. “Examples of serious medical needs include [t]he existence of an

17

injury that a reasonable doctor or patient would find important and worthy of comment or

18

treatment . . . or the existence of chronic and substantial pain.” Lopez v. Smith, 203 F.3d

19

1122, 1131 (9th Cir. 2000) (citation omitted). Plaintiff explicitly alleged that his pain was

20
21

chronic; that it was also substantial is a reasonable inference based on the allegations.

22

Metal implants that exacerbate pain is an injury that a reasonable doctor or patient would

23

find worthy of comment.

24

Defendant maintains further that, under the circumstances, the allegations do not

25

establish that she was aware of an excessive risk of harm to Plaintiff. Defendant notes

26

that the Court‟s first two screening orders found that Plaintiff‟s basic allegations did not

27
provide enough context to establish that Defendant acted with deliberate indifference. In
28
6

1

both screening orders the Court directed Plaintiff to provide more information.

2

Defendant argues that the Second Amended Complaint failed to provide the necessary

3
4

allegations.
Defendant is correct that the Court initially found Plaintiff‟s allegations to be

5
6

deficient. The Court directed Plaintiff to plead facts explaining whether Defendant could

7

not or would not act and include more factual details. However, the Court ultimately

8

concluded that Plaintiff‟s allegations plausibly described a scenario where Defendant

9

knowingly disregarded Plaintiff‟s need for medical assistance.

10
11

“The Eighth Amendment requires that prison officials provide a system of ready
access to adequate medical care.” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.

12
13
14

1982), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 481-84
(1995).

“[M]edical staff must be competent to examine prisoners and diagnose

15

illnesses,” and must either “be able to treat medical problems or to refer prisoners to

16

others who can.” Hoptowit, 682 F.2d at 1253. The Second Amended Complaint clearly

17

alleges that Plaintiff conveyed to Defendant his serious medical concerns. Defendant

18
19

may not have had direct authority to address the medical need immediately but she was
obligated to notify someone who could. The failure to act was the basis for the Court‟s

20
21
22

conclusion that, at the pleading stage, Plaintiff had established deliberate indifference.
Defendant‟s motion does not persuade the Court its analysis is incorrect.

23

2.

24

Finally, Defendant argues that she is entitled to qualified immunity. Government

25

officials enjoy qualified immunity from civil damages unless their conduct violates clearly

26

Qualified Immunity

established statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 (9th

27
Cir. 2001). When a court is presented with a qualified immunity defense, the central
28
7

1

questions for the court are: (1) whether the facts alleged, taken in the light most

2

favorable to the plaintiff, demonstrate that the defendant's conduct violated a statutory or

3

constitutional right; and (2) whether the right at issue was “clearly established.” Saucier

4
v. Katz, 533 U.S. 194, 201 (2001).
5
“A government official's conduct violates clearly established law when, at the time

6
7

of the challenged conduct, „[t]he contours of [a] right [are] sufficiently clear‟ that every

8

„reasonable official would have understood that what he is doing violates that right.‟”

9

Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483

10

U.S. 635, 640 (1987)). In this regard, “existing precedent must have placed the statutory

11

or constitutional question beyond debate.” Id. The inquiry must be undertaken in light of

12
13

the specific context of the particular case. Saucier, 533 U.S. at 201.
The Court cannot say what admissible evidence ultimately will prove. At the

14
15

pleading stage, however, Plaintiff‟s allegations are accepted as true. If proven, Plaintiff‟s

16

allegations are sufficient to establish that the Defendant was deliberately indifferent to

17

his serious medical needs in violation of the Eighth Amendment.

18
19

By 2013, the time of the alleged constitutional violation in this case, “the general
law regarding the medical treatment of prisoners was clearly established,” and “it was

20
21

also clearly established that [prison staff] could not intentionally deny or delay access to

22

medical care.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002). Any reasonable

23

prison official should have known that disregarding a serious medical need violates the

24

Eighth Amendment.

25

immunity should be denied.

26
27

IV.

Accordingly, Defendant‟s motion to dismiss based on qualified

CONCLUSION AND RECOMMENDATION
Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant‟s

28
8

1
2
3

Motion to Dismiss (ECF No. 32) be DENIED.
This Findings and Recommendation is submitted to the assigned United States
District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304

4
of the Local Rules of Practice for the United States District Court, Eastern District of
5
6

California. Within fourteen (14) days after being served with a copy, any party may file

7

written objections with the Court and serve a copy on all parties. Such a document

8

should be captioned “Objections to Magistrate Judge's Findings and Recommendation.”

9

The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. §

10
11

636(b)(1)(C). The parties are advised that failure to file objections within the specified
time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d

12
13

1153 (9th Cir. 1991).

14
15

IT IS SO ORDERED.

16
Dated:

September 15, 2014

/s/

17

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
9