Vanderbusch v. Enenmoh et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Claims Consistent with Magistrate Judge's Prior Order in Light of Williams Decision, signed by Magistrate Judge Erica P. Grosjean on 12/8/17. Referred to Judge O'Neill. Objections Due Within Fourteen Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GARY W. VANDERBUSCH,
Plaintiff,
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1:13-cv-01422-LJO-EPG-PC
FINDINGS AND RECOMMENDATIONS
TO DISMISS CLAIMS CONSISTENT
WITH MAGISTRATE JUDGE’S PRIOR
ORDER IN LIGHT OF WILLIAMS
DECISION
v.
DR. ENENMOH, et al.,
Defendants.
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(ECF Nos.16, 18)
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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS
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Gary W. Vanderbusch (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff consented to
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magistrate judge jurisdiction. (ECF No. 12.) Defendants declined to consent to magistrate
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judge jurisdiction. (ECF No. 26.)
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Plaintiff filed the Complaint commencing this action on September 5, 2013. (ECF No.
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1.) The Court1 screened the Complaint, and, finding no cognizable claims, granted Plaintiff
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leave to amend. (ECF No. 15.) On April 6, 2015, Plaintiff filed a First Amended Complaint
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(“FAC”). (ECF No. 16.) The Court screened the First Amended Complaint, and found a
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This case was initially assigned to Magistrate Judge Gary Austin.
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cognizable claim under the Eighth Amendment for deliberate indifference to serious medical
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needs against Defendant Dr. J. Chokatos, but dismissed all other claims and Defendants. (ECF
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No. 18.)
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As described below, in light of Ninth Circuit authority, this Court is recommending that
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the assigned district judge dismiss claims and Defendants consistent with the order by the
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magistrate judge at the screening stage.
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I.
WILLIAMS v. KING
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On November 9, 2017, the United States Court of Appeals for the Ninth Circuit held
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that a magistrate judge lacked jurisdiction to dismiss a prisoner’s case for failure to state a
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claim at the screening stage where the Plaintiff had consented to magistrate judge jurisdiction
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and defendants had not yet been served. Williams v. King, 875 F.3d 500 (9th Cir. 2017).
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Specifically, the Ninth Circuit held that “28 U.S.C. § 636(c)(1) requires the consent of all
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plaintiffs and defendants named in the complaint—irrespective of service of process—before
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jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court
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would otherwise hear.” Id. at 501.
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Here, the defendants were not served at the time the Court issued its order dismissing
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claims and defendants, and therefore had not appeared or consented to magistrate judge
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jurisdiction.
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defendants based solely on Plaintiff’s consent.
Accordingly, the magistrate judge lacked jurisdiction to dismiss claims and
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In light of the holding in Williams, this Court will recommend to the assigned district
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judge that he dismiss the claims and Defendants previously dismissed by this Court, for the
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reasons provided in the Court’s screening order.
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II.
SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
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1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
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1915(e)(2)(B)(ii).
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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534
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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a
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short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R.
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Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff's
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claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the
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liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v.
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Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint
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may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l
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Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673
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F.2d 266, 268 (9th Cir. 1982)).
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III.
PLAINTIFF’S ALLEGATIONS
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Plaintiff alleged claims against three defendants: Dr. Enenmoh, Chief Medical Officer
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at Corcoran State Prison; Dr. M. Rashidi, neurosurgeon at Mercy Hospital; and Dr. J. Chokatos,
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Primary Care Physician at Coalinga.
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receiving sufficient medical attention for his spinal conditions.
Plaintiff’s allegations generally relate to him not
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Plaintiff was in pain for cervical issues on or before January 2008. On January 29,
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2008, while housed at SATF State Prison, Defendant Enenmoh generated a physician request
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for services for a EMG and nerve condition study of Plaintiff’s upper right extremities. These
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tests were performed shortly thereafter and revealed Chronic Motor Radiculopathy at the C5
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and C6 nerve complex and carpal tunnel syndrome. A doctor recommended cervical spinal
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surgery, but Defendant Enenmoh wrote over the request and replaced it with a request for an
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EMG and nerve study, even though Defendant Enenmoh had already requested those tests and
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reviewed the results of the tests. This change in the recommendation unnecessarily prolonged
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Plaintiff’s surgery, resulting in pain.
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In June 2009, after experiencing pain and weakness, Plaintiff was taken to Mercy
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Hospital and a neurosurgeon recommended neck surgery between the C4 and C5 vertebral.
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Defendant Rashidi performed surgery removing the disc between the C5-C6 and C6-C7
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vertebral. The C4-C5 disc was not removed even though that is the area that caused the worst
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pain. Dr. Rashidi wrote in his Post Op report that he had removed the disc between C4-C5 and
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C6-C7, but then Dr. Rashidi wrote over the C4-C5 with what appeared to say C5-C6.
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After returning to SATF State Prison, a neurosurgeon there noted that Plaintiff needed
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extensive physical therapy and that the cervical spine had reversed its normal curvature.
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Defendant Enenmoh received 3 urgent requests for physical therapy, but Defendant Enenmoh
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refused to provide physical therapy.
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Beginning in August 2011, Plaintiff began consulting Defendant Chokatos as his
Plaintiff’s complaint provides a detailed account of Defendant
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primary care physician.
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Chokatos repeatedly denying plaintiff treatment, accusing Plaintiff of lying, taking away
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medical necessities, including those prescribed by a ten doctor panel to treat plaintiff’s spinal
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condition. Defendant Chokatos repeatedly wrote that Plaintiff did not require pain medication
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and is in no pain, although Plaintiff contends this was incorrect. Defendant Chokatos told
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Plaintiff to stop wasting his time, and that “there is nothing wrong with you.”
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When Plaintiff was eventually transferred to Lancaster State Prison in September 2013,
he was given a cane, lower bunk, mobility impaired accommodation, and ADA status again.
IV.
DELIBERATE INDIFFERENCE TO MEDICAL NEEDS
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The Eighth Amendment of the United States Constitution entitles prisoners to medical
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care and is violated when a prison official acts with deliberate indifference to a prisoner’s
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serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part
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on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.
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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
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2006). A prisoner alleging deliberate indifference to his serious medical needs “must show (1)
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a serious medical need by demonstrating that failure to treat [his] condition could result in
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further significant injury or the unnecessary and wanton infliction of pain,” and (2) that “the
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defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122
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(citing Jett, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a
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purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm
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caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The
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requisite state of mind is one of subjective recklessness, which entails more than ordinary lack
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of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d
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at 1122.
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The Court finds that Plaintiff has stated a claim under the Eighth Amendment for
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deliberate indifference to serious medical needs as to Defendant Chokatos. Plaintiff’s
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allegations are detailed and generally allege a prolonged and deliberate effort to deprive
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Plaintiff of medical care when Dr. Chokatos was Plaintiff’s primary care physician.
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The Court finds that Plaintiff has failed to allege a claim against Defendants Enenmoh
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and Rashidi. The Court notes the allegations that the actions of these defendants resulted in
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lack of medical care for Plaintiff. But the Court finds that the allegations against them fail to
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establish a mental state of deliberate indifference. Their actions appear consistent with an
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unintentional mistake and not a deliberate attempt to thwart Plaintiff’s medical care. Unlike
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Defendant Chokatos, Plaintiff alleges that Defendants Enenmoh and Rashidi did provide some
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medical care to Plaintiff during their tenure and at least attempted to address Plaintiff’s spinal
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issues.
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V.
CONCLUSION AND RECOMMENDATIONS
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that all claims and
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defendants, except for Plaintiff’s claim against Defendant Chokatos for deliberate indifference
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to serious medical needs in violation of the Eighth Amendment, be DISMISSED.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these findings and recommendations, any party may file
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Such a document should be captioned “Objections to
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written objections with the court.
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Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be
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served and filed within seven (7) days after service of the objections. The parties are advised
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that failure to file objections within the specified time may result in the waiver of rights on
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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,
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923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
December 8, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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