Shehee v. Nguyen et al
Filing
15
DISMISSAL ORDER, signed by Chief Judge Ralph R. Beistline on 6/19/15: The Complaint is DISMISSED IN PART WITHOUT LEAVE TO AMEND and DISMISSED IN PART WITH LEAVE TO AMEND; Amended Complaint due by 8/7/2015. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
GREGORY ELL SHEHEE,
Case No. 1:14-cv-01154-RRB
Plaintiff,
DISMISSAL ORDER
vs.
DR. KIM NGUYEN, et. al.,
Defendants.
Gregory Ell Shehee, a California state prisoner appearing pro se and in forma
pauperis, brings this action under the Civil Rights Act of 1963, 42 U.S.C. § 1983, and Title
II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12189, against
various individuals employed by the California Department of Mental Health.1 Shehee’s
complaint arises out of his incarceration at the Coalinga State Hospital, Coalinga,
California. Shehee is currently incarcerated in the Fresno County Jail.
1
In Addition to Dr. Nguyen, Shehee names as Defendants in the caption:
Dr. Reshimle; Dr. Lorensen; Dr. P. McGuinnes; Audrey King; Maria Reyes, RN; Johnny
Lopez, RN; Long Moua, ADA Coordinator; April Leavens, ADA Coordinator; and Demarco.
Although not included in the caption, Shehee also appears to include as defendants in the
body of his Complaint the California Department of Mental Health (erroneously named as
the Department of Mental Hospitals), Coalinga State Hospital, April Leavens, Pam Ahlin,
Peggy Thomas, Stephen Mayberg, Yvonne Beuster, Debi Philips, and the Accounting
Director.
DISMISSAL ORDER
Shehee v. Nguyen, 1:14-cv-01154-RRB – 1
I.
SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity.2 This Court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that
“seeks monetary relief against a defendant who is immune from such relief.”3 Likewise, a
prisoner must exhaust all administrative remedies as may be available,4 irrespective of
whether those administrative remedies provide for monetary relief.5
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”6 “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”7 Failure to state a claim under § 1915A incorporates the familiar standard
2
28 U.S.C. § 1915A(a).
3
28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
4
42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to
administrative procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion
of administrative remedies must be completed before filing suit).
5
See Booth, 532 U.S. at 734.
6
Fed. R. Civ. P. 8(a)(2).
7
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
(continued...)
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Shehee v. Nguyen, 1:14-cv-01154-RRB – 2
applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed
by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any
doubt, and dismissal should be granted only where it appears beyond doubt that the
plaintiff can plead no facts in support of his claim that would entitle him or her to relief.8
This requires the presentation of factual allegations sufficient to state a plausible
claim for relief.9 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a
defendant’s liability . . . ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”10 Further, although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.11
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”12
II.
GRAVAMEN OF COMPLAINT
Although presented in a disjointed manner, making it difficult to follow, it appears
from the Complaint that Shehee, who was declared legally blind on or about April 20, 2008,
is attempting to plead two claims against various health care providers employed by the
7
(...continued)
550 U.S. 554, 555 (2007)).
8
Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).
9
Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
10
Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
11
Id.
12
Id. (quoting Twombly, 550 U.S. at 555).
DISMISSAL ORDER
Shehee v. Nguyen, 1:14-cv-01154-RRB – 3
California Department of Mental Health. A medical deliberate indifference claim under
§ 1983 and a failure to accommodate claim under the ADA.
Medical Indifference Claim
Shehee’s first claim for relief against Dr. Reshimle, Dr. Lorensen, and Demarco
arises out of an eye surgery that occurred on or about September 20, 2008, and the postsurgical care continuing for several days thereafter. According to Shehee, in performing
surgery on Shehee’s eye, Dr. Reshimle did not properly control the laser beam allowing it
to cause serious additional injury to his eye. Shehee alleges that Dr. Sorensen performed
a surgical procedure on Shehee without proper anesthesia, which resulted in Shehee
suffering extreme pain. With respect to Demarco, Shehee appears to allege that in some
manner Demarco was responsible for misplacing Shehee’s medical records that resulted
in a four-day delay in Shehee receiving the surgical treatment by Dr. Reshimle.
Shehee alleges that in 2013 and continuing through 2014 Nurse Lopez and
Dr. Nguyen in some manner failed to properly arrange transportation for Shehee to receive
treatment by an outside ophthalmologist as directed by another physician. According to
Shehee, Nurse Lopez and Dr. Nguyen subsequently scheduled him for inadequate
treatment by internal, i.e., Department of Mental Health, health care providers.
ADA Claim
Shehee’s ADA claim appears to be divided into three parts. The first part, covering
the period 2008 through 2014, directed against the Department of Mental Health, Audrey
King, and April Leavens, alleges that the Defendants denied him accommodations as
DISMISSAL ORDER
Shehee v. Nguyen, 1:14-cv-01154-RRB – 4
required under the ADA. The second part, covering the part of 2014, directed against the
Department of Mental Health, Audrey King, and Long Moua, alleges that the Defendants
denied him accommodations as required under the ADA. The third part, alleges that during
2014 Nurse Johnny Lopez and Dr. Nguyen deprived Shehee of access to an educational
program for the blind and educational and vocational materials designed to assist the blind.
III.
DISCUSSION
Civil Rights Act, 42 U.S.C. § 1983
With respect to his claims against the California Department of Mental Health and
Coalinga State Hospital, the Supreme Court has held that “states or governmental entities
that are considered ‘arms of the State’ for Eleventh Amendment” are not “persons” under
§ 1983.13 Accordingly, to the extent it is brought against the California Department of
Mental Health and Coalinga State Hospital under the Civil Rights Act, 42 U.S.C. § 1983,
the Complaint will be dismissed without leave to amend.
Shehee’s claims against Dr. Reshimle, Dr. Lorensen, and Demarco also fail. All of
the acts underlying Shehee’s claim against them occurred in or about September 2008,
nearly six years before Shehee commenced this action. “For actions under 42 U.S.C.
§ 1983, courts apply the forum state’s statute of limitations for personal injury actions,
along with the forum state’s law regarding tolling, including equitable tolling, except to the
extent any of these laws is inconsistent with federal law.”14 As applied to prisoners, the
13
Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989).
14
Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004).
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Shehee v. Nguyen, 1:14-cv-01154-RRB – 5
limitation period for bringing an action under California law is four years.15 Thus, the
Complaint as against Dr. Reshimle, Dr. Lorensen, and Demarco must also be dismissed.
While it is highly unlikely that Shehee can truthfully plead facts sufficient to warrant
tolling of the limitation period, this Court cannot definitely state at this point he cannot so
do. Accordingly, dismissal will be with leave to amend. In amending his complaint Shehee
must allege facts sufficient to establish equitable tolling of the limitations period. That is,
Shehee must plead facts that establish that he was unable to bring his action within the
limitations period due to factors beyond his control.16
Shehee’s deliberate indifference claims against Nurse Lopez, Dr. Nguyen, and
Nurse Reyes fail on a separate basis. The Supreme Court, holding that the infliction of
unnecessary suffering on prisoners violated the Eighth Amendment, stated:
[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how evidenced,
deliberate indifference to a prisoner’s serious illness or injury states a cause
of action under § 1983. 17
15
See Cal. Civ. Proc. Code §§ 335.1, 352.1(a) (providing a two-year statute of
limitations for personal injury claims, which may be tolled for an additional two years for
prisoners).
16
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (to establish equitable tolling
the plaintiff has the burden or establishing two elements: “(1) he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.”).
17
Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation
marks and citations omitted).
DISMISSAL ORDER
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In Estelle the Supreme Court distinguished “deliberate indifference to serious medical
needs of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.18 In short, Eighth Amendment liability
requires “more than ordinary lack of due care for the prisoner's interests or safety.”19
In determining deliberate indifference, the court scrutinizes the particular facts and
looks for substantial indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect.20 The Ninth Circuit has spoken to the subject
of the appropriate test under Estelle:
In the Ninth Circuit, the test for deliberate indifference consists of two parts.
First, the plaintiff must 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 defendant’s response to the need was deliberately indifferent. This
second prong — defendant’s response to the need was deliberately
indifferent — is satisfied by 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. 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. Yet, an inadvertent [or
negligent] failure to provide adequate medical care alone does not state a
claim under § 1983. A prisoner need not show his harm was substantial;
however, such would provide additional support for the inmate’s claim that
the defendant was deliberately indifferent to his needs. If the harm is an
isolated exception to the defendant’s overall treatment of the prisoner [it]
ordinarily militates against a finding of deliberate indifference.21
18
Id. at 106.
19
Whitley v. Albers, 475 U.S. 312, 319 (1986).
20
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
21
Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks and
citations omitted).
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A defendant must purposely ignore or fail to respond to a prisoner’s pain or medical
need in order for deliberate indifference to be established. Where the claim is based upon
delay in providing a specified treatment, a prisoner has no claim for deliberate medical
indifference unless the delay was harmful.22
Shehee’s claims against Nurse Lopez, Dr. Nguyen, and Nurse Reyes fall far short
of establishing deliberate indifference. “Deliberate indifference is a high legal standard. A
showing of medical malpractice or negligence is insufficient to establish a constitutional
deprivation under the Eighth Amendment.”23 A mere difference of medical opinion
regarding the course of medical treatment is “insufficient as a matter of law, to establish
deliberate indifference.”24 At most, Shehee has established negligence, perhaps even
gross negligence. What he has not established is that either Nurse Lopez, Dr. Nguyen, or
Nurse Reyes acted with deliberate disregard for Shehee’ serious medical condition.
Furthermore, Shehee has failed to plead what additional injury he may have suffered as
a result of the actions of the Defendants. Thus, Shehee’s deliberate indifference claim
22
McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other
grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
23
Toguchi v. Chung, 391 F. 3d 1051, 1060 (9th Cir. 2004); see Hallett v. Morgan,
296 F.3d 732, 744 (9th Cir. 2002); see also Wood, 900 F.2d at 1334 (even gross
negligence is insufficient to establish a constitutional violation); Broughton v. Cutter Labs.,
622 F.2d 458, 460 (9th Cir. 1980) (per curium) (mere indifference, medical malpractice, or
negligence do not support a cause of action under the Eighth Amendment).
24
Toguchi, 391 F.3d at 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.
1981) (noting, also, that a disagreement between a prisoner and a medical professional
over the most appropriate course of treatment cannot give rise to a viable claim of
deliberate indifference).
DISMISSAL ORDER
Shehee v. Nguyen, 1:14-cv-01154-RRB – 8
against Nurse Lopez, Dr. Nguyen, and Nurse Reyes must be dismissed. Although, as with
his claims against Dr. Reshimle, Dr. Lorensen, and Demarco, it is highly unlikely that
Shehee can truthfully plead a viable claim against Nurse Lopez, Dr. Nguyen, and Nurse
Reyes, the Court will grant him leave to file an amended complaint.
Americans with Disabilities Act, 42 U.S.C. § 12131–12165
Initially, the Court notes that the California Department of Mental Health and
Coalinga State Hospital are not entitled to Eleventh Amendment sovereign immunity with
respect to Shehee’s Title II ADA claim.25
To state a claim under the Title II of the ADA, a plaintiff must allege:
(1) he is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of some public entity's services,
programs, or activities; (3) he was either excluded from participation in or
denied the benefits of the public entity's services, programs, or activities, or
was otherwise discriminated against by the public entity; and (4) such
exclusion, denial of benefits, or discrimination was by reason of [his]
disability.26
That Shehee has clearly properly pleaded that he satisfies the first element, and,
if he satisfies the second and third element, the fourth. Where Shehee falls short is with
respect to the second and third element elements.
With respect to the Department of Mental Health, Audrey King, April Leavens, and
Long Moua, Shehee’s Complaint is strictly conclusory, i.e., that they somehow denied him
25
United States v. Georgia, 546 U.S. 151, 159 (2006); Phiffer v. Columbia River
Corr. Inst., 384 F.3d 791, 792–93 (9th Cir. 2004).
26
O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (internal
quotation marks and citations omitted).
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appropriate accommodations, without alleging any factual basis to support his conclusions.
Shehee’s failure to provide a factual basis for his conclusions, e.g., the accommodation(s)
to which he was entitled that were denied, and what acts of, or the manner in which, the
Defendants denied him the accommodation. To the extent Shehee names Stephen
Mayberg, Pam Ahlin, and Peggy Thomas, the Complaint suffers from the same infirmity.
As against Nurse Lopez and Dr. Nguyen, Shehee also omits critical facts necessary
to pleading a cause of action. Specifically that, in addition to being legally blind, he was not
only eligible for the programs or otherwise met the prerequisite requirements for
enrollment, but that the refusal was for an improper reason. Moreover, as discussed further
below, it does not appear that Shehee has, or even could have, satisfied the requirement
that he first exhaust his administrative remedies.
Exhaustion
To the extent that Sheehee’s Complaint is based upon events that occurred in 2014,
it is evident from the face of the Complaint that he has not properly exhausted his
administrative remedies. Exhaustion of administrative remedies prior to bringing suit is
required irrespective of the relief sought by the prisoner and regardless of the relief
provided by the process.27 Although not jurisdictional, exhaustion is nonetheless
mandatory, and there is no discretion to excuse it.28 “Proper exhaustion” means
27
42 U.S.C. § 1997e(a) (mandating that “[n]o action shall be brought . . . until [the
prisoner’s] administrative remedies . . . are exhausted.”); Booth v. Churner, 532 U.S. 731,
742 (2001).
28
Porter v. Nussle, 534 U.S. 516, 524 (2002).
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“complet[ing] the administrative review process in accordance with the applicable rules.”29
The exhaustion requirement applies to Shehee’s ADA claim as well as his civil rights claim
under § 1983.30 California provides a three-level administrative procedure for prisoner
grievances.31 Given that the short time lapse between the March 2014 acts and the date
of the Complaint, July 21, 2014, less than four months, it is highly unlikely, if not
impossible, that Shehee properly exhausted his administrative remedies.
“Kickback” Claim
Shehee claims that Department of Mental Health, Coalinga State Hospital, Audrey
King, Debi Phillips, Yvonne Beuster, and the Accounting Director have taken federal dollars
intended for the care of patients, but denied adequate medical care. In addition to being
wholly conclusory without any supporting factual basis, those allegations simply do not fall
within the scope of either a § 1983 civil rights action or an action by individual under the
ADA. Consequently, the claim will be dismissed without leave to amend.
Verification
Finally, the Court notes that in verifying the Complaint Shehee states that he has
read it. That statement appears to be in direct contradiction to the allegations in the body
29
Jones v. Bock, 549 U.S. 199, 218 (2007).
30
O’Guinn, 502 F.3d at 1060–61.
31
Cal. Code Regs. tit. 15, § 3084.1(b) (“Unless otherwise stated in these
regulations, all appeals are subject to a third level of review, as described in section
3084.7, before administrative remedies are deemed exhausted. All lower level reviews are
subject to modification at the third level of review.”). Section 3084.7 provides for three
levels of review, the third level conducted by the Secretary of the California Department of
Corrections and Rehabilitation, or a designated representative.
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of the Complaint that he is blind and unable to read. If the Complaint was prepared and
read to Shehee by another, that fact should have been clearly stated in the verification and
signed by the person who prepared and read the Complaint to Shehee, which it does not.
IV.
ORDER
To the extent it is based upon an Eighth Amendment deliberate medical indifference
claim, the Complaint as against Defendants Dr. Reshimle, Dr. Lorensen, Demarco, Nurse
Lopez, and Dr. Nguyen is DISMISSED with leave to amend.
To the extent it is based upon a claim that they violated the Americans with
Disabilities Act, the Complaint as against the Department of Mental Health, Audrey King,
April Leavens, Long Moua, Nurse Johnny Lopez, Dr. Nguyen, Pam Ahlin, Stephen
Mayberg, and Peggy Thomas, is DISMISSED with leave to amend.
To the extent that it is based upon an allegation that the Department of Mental
Health, Coalinga State Hospital, Audrey King, Debi Phillips, Yvonne Beuster, and the
Accounting Director have some how taken “kickbacks” or otherwise misappropriated
federal dollars, the Complaint is DISMISSED without leave to amend.
In all other respects, including to the extent it attempts to assert a claim against
California Department of Mental Health and Coalinga State Hospital under the Civil Rights
Act, 42 U.S.C. § 1983, the Complaint is hereby DISMISSED, without leave to Amend.
Shehee is hereby granted through and including August 7, 2015, within which to
file an Amended Complaint consistent with this Order. In amending his Complaint, Shehee
should:
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Shehee v. Nguyen, 1:14-cv-01154-RRB – 12
1.
Separate each claim including, where appropriate, a caption for the claim;
2.
Sequentially number the paragraphs;
3.
With respect to each claim identify the constitutionally protected right violated,
describe the act(s) that violated that right, identify the person(s) who committed the act(s),
state the date(s) of the act(s), and describe the injury or damage he suffered as a result
of the violation; and
4.
With respect to each claim affirmatively plead that he has exhausted his
available administrative remedies, and, to the extent in his possession, custody, or control,
attach to the Amended Complaint copies of all documents evidencing such exhaustion.
Failure to comply with this Order within the time specified, or such additional
time as the Court may grant, may result in the dismissal of this action without further
notice.
IT IS SO ORDERED this 19th day of June, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
DISMISSAL ORDER
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