DeMonte v. Griffith

Filing 16

FINDINGS and RECOMMENDATION to Dismiss With Prejudice for Failure/Inability to State a Claim, signed by Magistrate Judge Sheila K. Oberto on 8/28/17. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP DeMONTE,

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Plaintiff,
v.

Case No. 1:16-cv-00116-LJO-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS WITH PREJUDICE FOR
FAILURE/INABILITY TO STATE A
CLAIM

Dr. LYLE GRIFFITH,
(Doc. 15)

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Defendant.
TWENTY-ONE (21) DAY DEADLINE

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FINDINGS

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A.

Background

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Plaintiff, Phillip DeMonte, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, this action should be

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DISMISSED since Plaintiff fails to state a cognizable claim.

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B.

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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.

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§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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pursuant to 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals

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dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted,
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and has not alleged imminent danger of serious physical injury does not qualify to proceed in

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forma pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) a right

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secured by the Constitution or laws of the United States was violated and (2) the alleged violation

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was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42,

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48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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C.

Summary of the First Amended Complaint

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Plaintiff is currently incarcerated at Avenal State Prison (“ASP”) in Avenal, California.

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Plaintiff alleges he was seen by Dr. Griffith for urinary incontinence. Dr. Griffith confused

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Plaintiff with another inmate and misdiagnosed Plaintiff with urethral stricture and Peyronies

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Plaque Disease. Dr. Griffith performed surgery on Plaintiff to remove the plaque on November 7,

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2012. Approximately one or two weeks following surgery, Plaintiff realized he could no longer

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achieve an erection. Plaintiff asserts claims against Dr. Griffith based on the surgery and

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subsequent complications. Plaintiff seeks monetary relief, examination by an outside urologist,

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and to have surgery to rectify the adverse effects of Dr. Griffith’s surgery.

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As discussed below, Plaintiff was previously given the applicable standards which

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indicated he does not have a cognizable claim based on medical malpractice. Plaintiff, however,

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persists in his allegations and again fails to state a cognizable claim. Indeed, it appears that this

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action would be more appropriately brought as a state action in the Superior Court. As it appears

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that Plaintiff is unable to state a cognizable claim, this action is properly dismissed with

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prejudice.

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//

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//
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D.

Pleading Requirements
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Federal Rule of Civil Procedure 8(a)

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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. Pro. 8(a). A complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. Plaintiff must set forth

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“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal,

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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but

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legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
DISCUSSION

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A.

Plaintiff’s Claims
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Eighth Amendment -- Deliberate Indifference

Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a
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prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton

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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants= response to the need was deliberately indifferent.”

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

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1096 (9th Cir. 2006) (quotation marks omitted)).

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“Indications that a plaintiff has a serious medical need include the existence of an injury

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that a reasonable doctor or patient would find important and worthy of comment or treatment; the

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presence of a medical condition that significantly affects an individual’s daily activities; or the

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existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

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2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113,

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1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening

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purposes, Plaintiff’s Peyronies Plaque, urethral stricture, and post-surgical condition are accepted

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as serious medical needs.

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Deliberate indifference is “a state of mind more blameworthy than negligence” and

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“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v.

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Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is

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shown where a prison official “knows that inmates face a substantial risk of serious harm and

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disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. Deliberate

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indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).

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“Under this standard, the prison official must not only ‘be aware of the facts from which the

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inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also
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draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should

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have been aware of the risk, but was not, then the official has not violated the Eighth

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Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada,

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290 F.3d 1175, 1188 (9th Cir. 2002)).

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In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference “may

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appear when prison officials deny, delay or intentionally interfere with medical treatment, or it

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may be shown by the way in which prison physicians provide medical care.” Id. (internal

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quotation marks omitted). Under Jett, “[a] prisoner need not show his harm was substantial.” Id.;

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see also McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant=s activities resulted in

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‘substantial’ harm to the prisoner is not necessary.”). Furthermore, a “difference of opinion

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between a physician and the prisoner - or between medical professionals - concerning what

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medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681

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F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)),

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overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014);

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Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d

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330, 332 (9th Cir. 1986)). Instead, Plaintiff “must show that the course of treatment the doctors

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chose was medically unacceptable under the circumstances and that the defendants chose this

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course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing

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Jackson, 90 F.3d at 332) (internal quotation marks omitted).

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If Dr. Griffith is a state actor, which is not supported by the pleading, Plaintiff fails to

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state any allegations to show that Dr. Griffith was deliberately indifferent to his medical

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condition. As stated in the prior screening order, performing the wrong surgery, or performing

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the correct surgery ineptly is not actionable as “[m]edical malpractice does not become a

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constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97,

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106 (1977); Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012), overruled in part on other

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grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680
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F.3d 1113, 1122 (9th Cir. 2012). Even assuming Dr. Griffith erred, an Eighth Amendment claim

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may not be premised on even gross negligence by a physician. Wood v. Housewright, 900 F.2d

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1332, 1334 (9th Cir. 1990). Likewise, failure to fully inform Plaintiff of the risks and benefits of

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a procedure (i.e. failure of informed consent) at most equates to negligence and is not actionable

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under the Eighth Amendment. Thus, Plaintiff fails to state a cognizable claim under section

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1983 against Dr. Griffith for deliberate indifference to his serious medical needs in violation of

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the Eighth Amendment.

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2.

California State Law Claims

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Plaintiff asserts claims for medical malpractice and negligence against Dr. Griffith under

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California law. As stated in the prior screening order, the California Tort Claims Act (“CTCA”),

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set forth in California Government Code sections 810 et seq., prohibits a suit for monetary

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damages against a public employee or entity unless the plaintiff first presented the claim to the

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California Victim Compensation and Government Claims Board (“VCGCB” or “Board”), and the

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Board acted on the claim, or the time for doing so expired. “The Tort Claims Act requires that

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any civil complaint for money or damages first be presented to and rejected by the pertinent

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public entity.” Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The

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purpose of this requirement is “to provide the public entity sufficient information to enable it to

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adequately investigate claims and to settle them, if appropriate, without the expense of litigation.”

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City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974)

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(citations omitted). Compliance with this “claim presentation requirement” constitutes an

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element of a cause of action for damages against a public entity or official. State v. Superior

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Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state

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courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation

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requirement subjects a claim against a public entity to a demurrer for failure to state a cause of

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action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted).

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To be timely, a claim must be presented to the VCGCB “not later than six months after

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the accrual of the cause of action.” Cal. Govt.Code § 911.2. Thereafter, “any suit brought against

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a public entity” must be commenced no more than six months after the public entity rejects the
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claim. Cal. Gov. Code, ' 945.6, subd. (a)(1). Plaintiff neither attaches his VCGCB claim, nor

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states any allegations to show compliance in the First Amended Complaint. An attachment to the

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original Complaint, however, revealed that Plaintiff’s claim was rejected by the VCGCB since he

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filed it more than a year after from the date of the incident that is the basis of his claim.

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Federal courts must require compliance with the CTCA for pendant state law claims that

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seek damages against state employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th

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Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th

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Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may

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proceed only if the claims were first presented to the state in compliance with the applicable

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requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th

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Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Thus,

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Plaintiff may not pursue claims under California law in this action as he fails to show timely

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compliance with the CTCA.
RECOMMENDATION

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Plaintiff’s First Amended Complaint fails to state a cognizable claim. Given Plaintiff’s

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persistence in attempting to state a causes of action that he as previously been advised are not

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actionable, it appears futile to allow further amendment. Plaintiff should not be granted leave to

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amend as the defects in his pleading are not capable of being cured through amendment. Akhtar

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v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).

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Accordingly, it is HEREBY RECOMMENDED that this action be dismissed with
prejudice.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
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1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

August 28, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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