Martinez v. Toor et al

Filing 6

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Twenty-One (21) Days signed by Magistrate Judge Jennifer L. Thurston on 6/22/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT JOHN MARTINEZ,

Case No. 1:17-cv-00319-JLT (PC)

Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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v.

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Dr. TOOR, et al.,

(Doc. 1)
Defendants.

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21-DAY DEADLINE

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Plaintiff apparently seeks to proceed in this action on claims of deliberate indifference to

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his serious medical needs. However, because he fails to state a cognizable claim, the Complaint

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is DISMISSED with leave to amend.

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A.

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).

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B.

Summary of Plaintiff=s Complaint

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Plaintiff alleges that, on March 6, 2015, he was seen by Dr. Ghotra. At that time, he told
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her that his left top tooth had been hurting for two weeks. (Doc. 1, p. 3.) Dr. Ghotra took x-rays

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and told Plaintiff nothing was wrong and that the pain would go away. (Id.) Plaintiff saw Dr.

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Luga about a month later, on April 7, 2015, and Dr. Luga told him that Dr. Ghotra misread the x-

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rays and that he needed a root canal or the tooth pulled. (Id.) Dr. Luga gave Plaintiff prescribed

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amoxicillin and clindamycin, which were too potent and killed the good bacteria in Plaintiff’s

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stomach. (Id.) Plaintiff “had to advocate” for himself as Dr. Toor (his primary care physician

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“PCP”) ignored him. (Id.) Five months later, on September 7, 2015, Plaintiff was diagnosed with

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clostridium difficile (“C.Diff”). (Id., p. 8.) Plaintiff thereafter lists various of his medical records

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which reflect or lack notation of his allergies to omeprazole, sulfa, and trimethoprim which were

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apparently, initially noted by Plaintiff’s previous PCP back in 2014. (Id.)
It appears that Plaintiff intends to allege that Dr. Toor, Dr. Ghotra, and Dr. Luga were

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deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.

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However, at most, his allegations may amount to medical negligence, which as discussed below is

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not actionable under § 1983. Thus, Plaintiff is provided the pleading requirements, the legal

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standards for deliberate indifference to his serious medical needs, and leave to file a first amended

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complaint.

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C.

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Pleading Requirements
1.

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.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is
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plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (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.

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If he chooses to file a first amended complaint, Plaintiff should make it as concise as

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possible. He should simply state which of his constitutional rights he feels were violated by each

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Defendant and its factual basis. The amended complaint should be clearly legible (see Local Rule

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130(b)), and double-spaced pursuant to Local Rule 130(c).

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2.

Exhibits

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Plaintiff=s Complaint is comprised of approximately 8 pages of factual allegations

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followed by 26 pages of exhibits which are not referenced in his allegations. The Court is not a

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repository for the parties’ evidence. Originals, or copies of evidence (i.e., prison or medical

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records, witness affidavits, etc.) need not be submitted until the course of litigation brings the

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evidence into question (for example, on a motion for summary judgment, at trial, or when

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requested by the Court). If Plaintiff attaches exhibits to his amended complaint, each exhibit

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must be specifically referenced and each page of an exhibit must be numbered. Fed. R. Civ. Pro.

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10(c). For example, Plaintiff must state “see Exhibit A” or something similar in order to direct
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the Court to the specific exhibit Plaintiff is referencing. Further, if the exhibit consists of more

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than one page, Plaintiff must reference the specific page of the exhibit (i.e. “See Exhibit A, page

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3”).

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At this point, the submission of evidence is premature as Plaintiff is only required to state

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a prima facie claim for relief. For screening purposes, the Court assumes that factual allegations

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are true, so it is unnecessary for Plaintiff to submit exhibits in support of the allegations in a

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complaint. Thus, if Plaintiff chooses to file a first amended complaint, he would do well to

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simply state the facts upon which he alleges a Defendant has violated his constitutional rights and

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refrain from submitting exhibits.

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3.

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Linkage Requirement

The Civil Rights Act (42 U.S.C. ' 1983) requires that there be an actual connection or link

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between the actions of the defendants and the deprivation alleged to have been suffered by

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Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423

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U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation

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of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

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participates in another’s affirmative acts or omits to perform an act which he is legally required to

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do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each

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named defendant with some affirmative act or omission that demonstrates a violation of

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Plaintiff=s federal rights.

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Plaintiff must clearly identify which Defendant(s) he feels are responsible for each

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violation of his constitutional rights and their factual basis as his Complaint must put each

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Defendant on notice of Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d

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1167, 1171 (9th Cir. 2004).

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D.

Claims for Relief
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Deliberate Indifference to Serious Medical Needs

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, 439 F.3d at 1096

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(quotation marks omitted)).

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As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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

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activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,

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1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Even leniently construed, the Court is

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unable to define what condition it is that Plaintiff is alleging equates to a serious medical need.

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Plaintiff must clearly state what medical condition he believes was wrongly treated or ignored

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which is the basis for this action.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than
negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or
safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).
Deliberate indifference is shown where a prison official “knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”
Id., at 847. In medical cases, this requires 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. Wilhelm, 680
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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from

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which the inference could be drawn that a substantial risk of serious harm exists,’ but that person

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‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison

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

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

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

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The Court is unable to ascertain what Plaintiff feels each doctor he names in this action

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did that amounts to deliberate indifference to Plaintiff’s serious medical need. It appears that Dr.

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Luga may have miss read the x-ray of Plaintiff’s tooth, which at most this may equate to medical

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malpractice, but is not cognizable under § 1983. “Medical 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). An Eighth Amendment claim may not be premised on even

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gross negligence by a physician. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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Moreover, to the extent that Plaintiff feels he should have received a different medication
than was prescribed for his dental condition, he has not shown any basis that amoxicillin and
clindamycin were clearly inappropriate so that prescribing them equated to deliberate indifference
to Plaintiff’s needs. At most, this is a difference of opinion which does not amount to deliberate
indifference. See Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012).
Finally, Plaintiff’s allegations that Dr. Toor “deliberately disregarded [Plaintiff’s] physical
well being at the early stages of [his] chemical disorder from allergies to omeprazole, sulfa, [and]
trimethoprim” and that Plaintiff continued to complain about his “intense suffering” when he saw
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Dr. Toor on August 24, 2015, these allegations are too conclusory to be cognizable. Iqbal, 556

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U.S. at 678. Rather, Plaintiff must set forth allegations from which this conclusion may be

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drawn. Thus, Plaintiff fails to state a cognizable claim for deliberate indifference to his serious

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medical needs against any of the doctors he names in this action.

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2.

State Law Claims
a.

Government Claims Act

Plaintiff might be able to pursue malpractice claims against the physicians under the laws

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of the State of California. However, under the California Government Claims Act (“CGCA”), set

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forth in California Government Code sections 810 et seq., a plaintiff may not bring a suit for

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

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claim to the California Victim Compensation and Government Claims Board (“VCGCB” or

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“Board”), and the Board acted on the claim, or the time for doing so expired. “The Tort Claims

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Act requires that any civil complaint for money or damages first be presented to and rejected by

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the pertinent public entity.” Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860

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(1995). The purpose of this requirement is “to provide the public entity sufficient information to

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enable it to adequately investigate claims and to settle them, if appropriate, without the expense of

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litigation,” City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d

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701 (1974) (citations omitted), and “to confine potential governmental liability to rigidly

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delineated circumstances: immunity is waived only if the various requirements of the Act are

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satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 1111,

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1125 (9th Cir. 2013). Compliance with this “claim presentation requirement” constitutes an
element of a cause of action for damages against a public entity or official. State v. Superior
Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state
courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation
requirement subjects a claim against a public entity to a demurrer for failure to state a cause of
action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted).
Federal courts likewise must require compliance with the CGCA for pendant state law
claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d
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702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477

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(9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983,

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

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presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627

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(9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Plaintiff

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fails to state any allegations which show he complied with the CGCA upon which to be allowed

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to pursue claims for violation of California law in this action.
b.

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Supplemental Jurisdiction

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Furthermore, pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district

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court has original jurisdiction, the district court “shall have supplemental jurisdiction over all

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other claims in the action within such original jurisdiction that they form part of the same case or

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controversy under Article III,” except as provided in subsections (b) and (c). “[O]nce judicial

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power exists under ' 1367(a), retention of supplemental jurisdiction over state law claims under

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1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The

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district court may decline to exercise supplemental jurisdiction over a claim under subsection (a)

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if . . . the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

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' 1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman

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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Watison v.

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Carter, 668 F.3d 1108, 1117-18 (9th Cir. 2012) (even in the presence of cognizable federal

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claim, district court has discretion to decline supplemental jurisdiction over novel or complex

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issue of state law of whether criminal statutes give rise to civil liability). The Supreme Court has

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cautioned that “if the federal claims are dismissed before trial, . . . the state claims should be
dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). If
Plaintiff has complied with the CTCA, jurisdiction over his claims under California law will only
be exercised by this Court as long as he has federal claims pending.
E.

Order

For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first
amended complaint within 21 days. If Plaintiff no longer desires to pursue this action, he may
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file a notice of voluntary dismissal. If Plaintiff needs an extension of time to comply with this

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order, he shall file a motion seeking an extension of time no later than 21 days from the date of

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service of this order.

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Plaintiff must demonstrate in any amended complaint how the conditions complained of

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have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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An amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain

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statement must “give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555

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(2007) (citations omitted). Plaintiff is further informed that an amended complaint supercedes the

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original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th

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Cir. Aug. 29, 2012) (en banc), and must be “complete in itself without reference to the prior or

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superceded pleading,” Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified
by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff
may not change the nature of this suit by adding new, unrelated claims in his first amended
complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).
Based on the foregoing, the Court ORDERS that:
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Plaintiff’s Complaint is dismissed, with leave to amend;

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The Clerk’s Office shall send Plaintiff a civil rights complaint form; and

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Within 21 days from the date of service of this order, Plaintiff must file a first
amended complaint curing the deficiencies identified by the Court in this order or
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a notice of voluntary dismissal.

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If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a

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court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

June 22, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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