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)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PHILLIP DeMONTE, 10 11 12 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) 13 Defendant. TWENTY-ONE (21) DAY DEADLINE 14 FINDINGS 15 16 A. Background 17 Plaintiff, Phillip DeMonte, is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, this action should be 19 DISMISSED since Plaintiff fails to state a cognizable claim. 20 B. Screening Requirement 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 26 § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed 27 pursuant to 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals 28 dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, 1 1 and has not alleged imminent danger of serious physical injury does not qualify to proceed in 2 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 3 4 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 5 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 6 substantive rights, but merely provides a method for vindicating federal rights conferred 7 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 8 9 secured by the Constitution or laws of the United States was violated and (2) the alleged violation 10 was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 11 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 12 C. Summary of the First Amended Complaint 13 Plaintiff is currently incarcerated at Avenal State Prison (“ASP”) in Avenal, California. 14 Plaintiff alleges he was seen by Dr. Griffith for urinary incontinence. Dr. Griffith confused 15 Plaintiff with another inmate and misdiagnosed Plaintiff with urethral stricture and Peyronies 16 Plaque Disease. Dr. Griffith performed surgery on Plaintiff to remove the plaque on November 7, 17 2012. Approximately one or two weeks following surgery, Plaintiff realized he could no longer 18 achieve an erection. Plaintiff asserts claims against Dr. Griffith based on the surgery and 19 subsequent complications. Plaintiff seeks monetary relief, examination by an outside urologist, 20 and to have surgery to rectify the adverse effects of Dr. Griffith’s surgery. 21 As discussed below, Plaintiff was previously given the applicable standards which 22 indicated he does not have a cognizable claim based on medical malpractice. Plaintiff, however, 23 persists in his allegations and again fails to state a cognizable claim. Indeed, it appears that this 24 action would be more appropriately brought as a state action in the Superior Court. As it appears 25 that Plaintiff is unable to state a cognizable claim, this action is properly dismissed with 26 prejudice. 27 // 28 // 2 1 D. Pleading Requirements 1. 2 Federal Rule of Civil Procedure 8(a) 3 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 4 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 5 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 6 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 7 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 8 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. Plaintiff must set forth 9 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 10 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 11 legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 12 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 13 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 14 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 15 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 16 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 17 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 18 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 19 Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 20 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 21 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 22 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 23 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 24 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. DISCUSSION 25 26 27 28 A. Plaintiff’s Claims 1. Eighth Amendment -- Deliberate Indifference Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 3 1 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 2 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 3 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 4 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 5 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 6 Cir.1997) (en banc)) 7 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 8 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 9 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 10 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 11 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 12 1096 (9th Cir. 2006) (quotation marks omitted)). 13 “Indications that a plaintiff has a serious medical need include the existence of an injury 14 that a reasonable doctor or patient would find important and worthy of comment or treatment; the 15 presence of a medical condition that significantly affects an individual’s daily activities; or the 16 existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 17 2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113, 18 1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening 19 purposes, Plaintiff’s Peyronies Plaque, urethral stricture, and post-surgical condition are accepted 20 as serious medical needs. 21 Deliberate indifference is “a state of mind more blameworthy than negligence” and 22 “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v. 23 Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is 24 shown where a prison official “knows that inmates face a substantial risk of serious harm and 25 disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. Deliberate 26 indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). 27 “Under this standard, the prison official must not only ‘be aware of the facts from which the 28 inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also 4 1 draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should 2 have been aware of the risk, but was not, then the official has not violated the Eighth 3 Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 4 290 F.3d 1175, 1188 (9th Cir. 2002)). 5 In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 6 prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 7 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference “may 8 appear when prison officials deny, delay or intentionally interfere with medical treatment, or it 9 may be shown by the way in which prison physicians provide medical care.” Id. (internal 10 quotation marks omitted). Under Jett, “[a] prisoner need not show his harm was substantial.” Id.; 11 see also McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant=s activities resulted in 12 ‘substantial’ harm to the prisoner is not necessary.”). Furthermore, a “difference of opinion 13 between a physician and the prisoner - or between medical professionals - concerning what 14 medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 15 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), 16 overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); 17 Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 18 330, 332 (9th Cir. 1986)). Instead, Plaintiff “must show that the course of treatment the doctors 19 chose was medically unacceptable under the circumstances and that the defendants chose this 20 course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing 21 Jackson, 90 F.3d at 332) (internal quotation marks omitted). 22 If Dr. Griffith is a state actor, which is not supported by the pleading, Plaintiff fails to 23 state any allegations to show that Dr. Griffith was deliberately indifferent to his medical 24 condition. As stated in the prior screening order, performing the wrong surgery, or performing 25 the correct surgery ineptly is not actionable as “[m]edical malpractice does not become a 26 constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 27 106 (1977); Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012), overruled in part on other 28 grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 5 1 F.3d 1113, 1122 (9th Cir. 2012). Even assuming Dr. Griffith erred, an Eighth Amendment claim 2 may not be premised on even gross negligence by a physician. Wood v. Housewright, 900 F.2d 3 1332, 1334 (9th Cir. 1990). Likewise, failure to fully inform Plaintiff of the risks and benefits of 4 a procedure (i.e. failure of informed consent) at most equates to negligence and is not actionable 5 under the Eighth Amendment. Thus, Plaintiff fails to state a cognizable claim under section 6 1983 against Dr. Griffith for deliberate indifference to his serious medical needs in violation of 7 the Eighth Amendment. 8 2. California State Law Claims 9 Plaintiff asserts claims for medical malpractice and negligence against Dr. Griffith under 10 California law. As stated in the prior screening order, the California Tort Claims Act (“CTCA”), 11 set forth in California Government Code sections 810 et seq., prohibits a suit for monetary 12 damages against a public employee or entity unless the plaintiff first presented the claim to the 13 California Victim Compensation and Government Claims Board (“VCGCB” or “Board”), and the 14 Board acted on the claim, or the time for doing so expired. “The Tort Claims Act requires that 15 any civil complaint for money or damages first be presented to and rejected by the pertinent 16 public entity.” Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The 17 purpose of this requirement is “to provide the public entity sufficient information to enable it to 18 adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” 19 City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) 20 (citations omitted). Compliance with this “claim presentation requirement” constitutes an 21 element of a cause of action for damages against a public entity or official. State v. Superior 22 Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state 23 courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation 24 requirement subjects a claim against a public entity to a demurrer for failure to state a cause of 25 action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). 26 To be timely, a claim must be presented to the VCGCB “not later than six months after 27 the accrual of the cause of action.” Cal. Govt.Code § 911.2. Thereafter, “any suit brought against 28 a public entity” must be commenced no more than six months after the public entity rejects the 6 1 claim. Cal. Gov. Code, ' 945.6, subd. (a)(1). Plaintiff neither attaches his VCGCB claim, nor 2 states any allegations to show compliance in the First Amended Complaint. An attachment to the 3 original Complaint, however, revealed that Plaintiff’s claim was rejected by the VCGCB since he 4 filed it more than a year after from the date of the incident that is the basis of his claim. 5 Federal courts must require compliance with the CTCA for pendant state law claims that 6 seek damages against state employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th 7 Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th 8 Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may 9 proceed only if the claims were first presented to the state in compliance with the applicable 10 requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th 11 Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Thus, 12 Plaintiff may not pursue claims under California law in this action as he fails to show timely 13 compliance with the CTCA. RECOMMENDATION 14 15 Plaintiff’s First Amended Complaint fails to state a cognizable claim. Given Plaintiff’s 16 persistence in attempting to state a causes of action that he as previously been advised are not 17 actionable, it appears futile to allow further amendment. Plaintiff should not be granted leave to 18 amend as the defects in his pleading are not capable of being cured through amendment. Akhtar 19 v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 20 21 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed with prejudice. 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 24 twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff 25 may file written objections with the Court. The document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 27 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 28 Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 7 1 1394 (9th Cir. 1991)). 2 3 4 IT IS SO ORDERED. Dated: August 28, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 .

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?