Genthner v. Clovis Community Hospital et al

Filing 7

ORDER Dismissing Second Amended Complaint with Leave to Amend, signed by Magistrate Judge Barbara A. McAuliffe on 9/1/16. 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEBBY GENTHNER,

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Plaintiff,
v.

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CLOVIS COMMUNITY HOSPITAL and
DAVID STONE, N. P.,

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Defendants.

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1:16-cv-00581-DAD-BAM
ORDER DISMISSING SECOND AMENDED
COMPLAINT WITH LEAVE TO AMEND
THIRTY-DAY DEADLINE

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Plaintiff Debby Genthner (“Plaintiff”), proceeding pro se and in forma pauperis, initiated

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this civil action on April 25, 2016. On April 28, 2016, the Court dismissed Plaintiff’s complaint

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with leave to amend. Plaintiff filed a first amended complaint on May 27, 2016. On June 22,

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2016, the Court dismissed Plaintiff’s first amended complaint for failure to state a cognizable

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claim. The Court directed Plaintiff to file an amended complaint within thirty days. (Doc. 5).

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Plaintiff’s second amended complaint, filed on July 20, 2016, is currently before the Court for

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screening. (Doc. 6).

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Screening Requirement

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The Court is required to screen complaints brought by persons proceeding in pro per. 28

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U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is

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frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks

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monetary relief from a defendant who is immune from such relief.

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1915(e)(2)(B)(ii).

28 U.S.C. §

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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Pro se litigants are entitled to have their pleadings liberally construed and to have any

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doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012),

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims

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must be facially plausible, which requires sufficient factual detail to allow the Court to

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reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S.

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at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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

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Plaintiff’s Allegations

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As with her first amended complaint, Plaintiff names Clovis Community Hospital and

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Nurse Practitioner David Stone as defendants. Plaintiff alleges that Nurse Practitioner Stone did

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not provide a proper medical assessment for severe burn damages to her mouth on April 21,

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2014, at Clovis Community Hospital. When Plaintiff arrived at the emergency room, she told an

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intake person that her mouth was badly burned and her pain was above a ten on a scale of 1-10.

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Plaintiff’s mouth and throat were “raw and on fire” and she had “sores all around the inside of

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her mouth.” (Doc. 6 at p. 1). Plaintiff waited in the emergency room for about forty minutes and

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was then called to have her vitals checked by the nurses. Nurse Practitioner Stone was one of the
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nurses in the room where Plaintiff’s vitals were taken, but he did not check Plaintiff’s mouth or

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give her any pain medication or treatment.

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emergency room with her mouth burning in pain for over four hours with no exam or treatment.

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Plaintiff alleges that she suffered for days after the visit and can still see burn marks in her mouth

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and redness in her throat.

(Doc. 6 at p. 1). Rather, Plaintiff sat in the

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Plaintiff also alleges that Nurse Practitioner Stone failed to report her severe mouth burns

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to the authorities and that she continues “to suffer from repeated injuries by this perpetrator or

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perpetrators because [Nurse Practitioner] Stone did not report these injuries to law enforcement

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authorities.” (Doc. 6 at p. 4).

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Plaintiff further alleges that the hospital engaged in a conspiracy to spoil evidence and

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obstruct justice. Specifically, Plaintiff asserts that her medical records do not reflect what she

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told the intake person when she arrived at the emergency room. (Doc. 6 at p. 4). Plaintiff also

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asserts that certain city officials contacted Nurse Practitioner Stone at the hospital to prevent

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Plaintiff from being examined and from receiving any treatment for her injuries.

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Plaintiff contends that she went “to an E.N.T. doctor on April 29, 2014 to check the burn

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injuries in [her] mouth.” (Doc. 6 at p. 5). Plaintiff asserts that the nurse read the notes from

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Clovis Community Hospital, and said “how bad does your pain level have to be to get treatment

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or pain medication.” (Doc. 6 at p. 5).

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Plaintiff brings claims (Claims 1, 2, and 4) against Clovis Community Hospital pursuant

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to the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd based on

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allegations that Nurse Practitioner Stone failed to provide a proper medical assessment and

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treatment for severe burn damages to her mouth on April 21, 2014.

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conspiracy claims (Claims 5 and 10) against the hospital and Nurse Practitioner Stone pursuant

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to 42 U.S.C. § 1985. Additionally, Plaintiff’s second amended complaint contains state law

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claims (Claims 6, 7 and 8) for negligence, medical negligence, malpractice and intentional and

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negligent infliction of emotional distress, along with claims (Claims 3 and 9) against the hospital

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and Nurse Practitioner Stone for alleged violations of California Penal Code § 11160 for failure

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to report her burns to authorities.
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Plaintiff also asserts

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Discussion

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A. Emergency Medical Treatment and Active Labor Act (“EMTALA”)

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Congress enacted the EMTALA, known as the “Patient Anti-Dumping Act,” to address

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concerns that “hospitals were dumping patients who were unable to pay for care, either by

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refusing to provide emergency treatment to these patients, or by transferring the patients to other

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hospitals before the patients’ conditions stabilized.” Jackson v. East Bay Hosp., 246 F.3d 1248,

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1254 (9th Cir. 2001). Under the EMTALA, hospitals with emergency rooms must “provide for

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an appropriate medical screening examination within the capability of the hospital’s emergency

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department ... to determine whether or not an emergency medical condition ... exists.” 42 U.S.C.

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§ 1395dd(a). Hospitals are required to conduct an examination that is “reasonably calculated to

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identify the patient’s critical medical condition.” Hoffman v. Tonnemacher, 425 F. Supp.2d 1120,

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1130 (E.D. Cal. 2006). If an emergency medical condition is discovered, then hospital staff must

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“stabilize” the patient before transferring her to another facility or discharging her. Baker v.

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Adventist Health, Inc., 260 F.3d 987, 992 (9th Cir.2001). However, a hospital is not liable under

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the EMTALA if it negligently fails to detect or if it misdiagnoses an emergency medical

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condition. Bryant v. Adventist Health System/West, 289 F.3d 1162, 1166 (9th Cir. 2002). As

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such, individuals who receive substandard medical care must pursue their remedies under state

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law and not under the EMTALA. Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir.

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1995).

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Here, Plaintiff fails to state a cognizable claim against Clovis Community Hospital under

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the EMTALA related to her medical screening. Although Plaintiff alleges a failure to examine

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or screen her medical condition, exhibits attached to the second amended complaint belie her

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allegations and demonstrate that medical staff at Clovis Community Hospital triaged Plaintiff at

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approximately 5:36 p.m. on April 21, 2014, and determined that her condition was non-urgent.

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(Doc. 6 at pp. 15-20, Ex. A to Sec. Amend. Compl.). Plaintiff fails to allege facts demonstrating

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that the triage screening conducted by hospital staff was not appropriate. See, e.g. Garza v. City

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& County of San Francisco, 2006 WL 3462925, at *3-4 (N.D. Cal. Nov. 30, 2006) (denying

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request for reconsideration of order granting summary judgment; reaffirming holding that
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plaintiff had provided no evidence that the triage screening was not appropriate within the

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capability of the hospital’s emergency department). Moreover, Plaintiff presents evidence that

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she was uncooperative with Nurse Practitioner Stone, and that she eloped from the hospital.

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(Doc. 6 at pp. 14 and 15, Ex. A to Sec. Amend. Compl.). Therefore, Plaintiff’s own actions

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preclude any claim that the hospital violated the EMTALA. Further, any assertion that the triage

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evaluation failed to detect or diagnose her mouth burns must be pursued under state law, not the

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EMTALA. Bryant, 289 F.3d at 1166; Eberhardt, ; Baker v. Adventist Health, Inc., 260 F.3d 987,

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992 (9th Cir.2001) (medical malpractice is not actionable under the EMTALA).

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“negligence in the screening process or the provision of a merely faulty screening, as opposed to

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refusing to screen or disparate screening, does not violate EMTALA, although it may implicate

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state malpractice law.” Hoffman, 425 F.Supp.2d at 1131.

Indeed,

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Plaintiff also fails to state a cognizable claim against the hospital regarding any purported

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failure to stabilize her before discharge because she eloped from the hospital. (Doc. 6 at p. 15,

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Ex. A to Sec. Amend. Compl.). Thus, the hospital cannot be liable under the EMTALA for

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failure to stabilize her before any discharge or transfer.

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Insofar as Plaintiff attempts to bring a claim against Nurse Practitioner Stone for

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violation of the EMTALA, she may not do so. The EMTALA does not provide a private right of

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action against hospital employees. “The plain text of the EMTALA explicitly limits a private

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right of action to the participating hospital.” Eberhardt, 62 F.3d at 1256.

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For these reasons, Plaintiff fails to state cognizable claims against the hospital or Nurse
Practitioner Stone for purported violations of the EMTALA

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B. 42 U.S.C. § 1985

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Plaintiff alleges that defendants conspired with city officials to deprive her of her right to

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a medical examination and treatment on April 21, 2014, at Clovis Community Hospital in

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violation of 42 U.S.C. § 1985.

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individual’s civil rights. A claim under section 1985 must allege specific facts to support the

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allegation that defendants conspired together. Karim–Panahi v. Los Angeles Police Dep’t., 839

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F.2d 621, 626 (9th Cir.1988). A mere allegation of conspiracy without factual specificity is

Section 1985 proscribes conspiracies to interfere with an

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insufficient to state a claim under 42 U.S.C. § 1985. Id.; Sanchez v. City of Santa Ana, 936 F.2d

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1027, 1039 (9th Cir.1991).

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conspiracy to violate her civil rights. Plaintiff’s conclusory allegations are insufficient.

Here, Plaintiff fails to allege any facts to support a claim of

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C. State Law Claims

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Plaintiff has asserted several state law claims, including negligence and medical

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negligence.1 As Plaintiff has failed to state any cognizable federal claims in this action, the

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Court finds it unnecessary to screen Plaintiff’s state law claims. The Court generally declines to

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exercise supplemental jurisdiction over state law claims in the absence of viable federal claims

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and this case presents no exception. 28 U.S.C. § 1367(c)(3); Parra v. PacifiCare of Ariz., Inc.,

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715 F.3d 1146, 1156 (9th Cir. 2013); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d

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802, 805 (9th Cir. 2001); see also Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012) (if

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court declines to exercise supplemental jurisdiction over state law claims once court dismissed

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federal claims, then the court should dismiss the state law claims without prejudice).

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CONCLUSION AND ORDER

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Plaintiff fails to state a cognizable federal claim. In an abundance of caution, Plaintiff

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will be provided with one additional opportunity to amend her complaint to state a cognizable

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federal claim. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the

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nature of this suit by adding new, unrelated claims in her amended complaint. George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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the named defendant did that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678-

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79, 129 S.Ct. at 1948-49.

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[sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555

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(citations omitted).

Although accepted as true, the “[f]actual allegations must be

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s

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Plaintiff also alleges that Defendants violated California Penal Code §§ 11160 and 11161. Plaintiff has not
demonstrated that that these statutory provisions authorize a private cause of action.
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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s second amended complaint is dismissed for failure to state a cognizable

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federal claim;
2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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third amended complaint; and
3. If Plaintiff fails to file a third amended complaint in compliance with this order,

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the Court will recommend that this action be dismissed with prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 1, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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