Jorgenson v. Moore et al

Filing 93

FINDINGS and RECOMMENDATIONS Recommending that Defendant Haak's Partial Motion to Dismiss 46 be Denied, signed by Magistrate Judge Erica P. Grosjean on 9/23/19. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL JORGENSON,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT
HAAK’S PARTIAL MOTION TO DISMISS
BE DENIED

v.

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Case No. 1:17-cv-00817-LJO-EPG (PC)

UNITED STATES OF AMERICA., et al.,

(ECF NO. 46)

Defendants.

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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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I.

BACKGROUND

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Paul Jorgenson (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis in this action. This case now proceeds on Plaintiff’s Second Amended Complaint

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(“SAC”), which was filed on July 12, 2018. (ECF No. 19.) This case is proceeding “on

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Plaintiff’s FTCA claim against the United States, his Eighth Amendment Bivens claim against

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the four unknown correctional officers, and his state tort claims for medical negligence and

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battery against Defendants Haak, Randhawa, and Emanuel Medical Center.” (ECF No. 21, p.

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2.)

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On January 17, 2019, defendant Haak filed a partial motion to dismiss. (ECF No. 46.)

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On February 7, 2019, Plaintiff filed his opposition to defendant Haak’s motion to dismiss.

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(ECF No. 57.) Defendant Haak filed his reply on February 12, 2019. (ECF No. 59.)

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The issue of Plaintiff’s consent to the medical procedures he underwent was converted

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to a motion for summary judgment. (ECF Nos. 70 and 74.) On June 24, 2019, Plaintiff filed a

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supplemental response, including evidence. (ECF No. 78.) On July 17, 2019, defendant Haak
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filed his reply to Plaintiff’s supplemental response. (ECF No. 81.)
For the reasons described below, the Court will recommend that defendant Haak’s

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partial motion to dismiss be denied. The Court will address the portion of the motion to

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dismiss that was converted to a motion for summary judgment in a separate order.
SUMMARY OF PLAINTIFF’S SECOND AMENDED COMPLAINT

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II.

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At approximately 8:00 a.m. on the morning of November 21, 2016, four U.S.P. Atwater

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correctional officers arrived at Plaintiff’s cell and informed him that he was going on a medical

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trip. Plaintiff told the officer in charge that he had not requested any medical treatment either

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verbally or in written form, and that he had a right to refuse non-emergency medical treatment.

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Nevertheless, Plaintiff was placed in leg shackles, as well as hand-cuffs secured with a “black

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box” and waist chain, and then taken to Emanuel Hospital Center. The restraints were never

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completely removed during the course of Plaintiff’s hospital stay.

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These four unknown correctional officers were the staff that provided security at the

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Emanuel Hospital Center, and were charged with guarding Plaintiff at Emanuel Medical Center

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from November 21 to November 23, 2016. Plaintiff was kept chained hand and foot to the

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hospital bed. The four officers also kept the television set at the highest volume during

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Plaintiff’s entire stay at the hospital. This high volume subjected Plaintiff to sleep deprivation.

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After arriving at the Emanuel Medical Center on November 21, at approximately 10:00

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a.m., Plaintiff was ordered to sign some “preliminary paperwork” by the guards and Emanuel

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Medical Center staff. Plaintiff again advised the officer in charge that he had not requested any

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medical treatment and also informed the Emanuel Medical Center staff that he had a right to

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refuse non-emergency medical treatment.

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Plaintiff was then placed supine in a CT scanner. After CT localization of a portion in

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the right hepatic lobe of the liver for the biopsy was obtained, a lidocaine anesthetic was

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administered and a 19-gauge guide needle was advanced into the right hepatic lobe. 20-gauge

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lung core samples were obtained and placed in a preservative solution for later examination.

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The procedure was negligently performed due to staff inattention and in wanton disregard of

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Plaintiff’s requests to refuse treatment. Plaintiff suffered an immediate pneumothorax collapse
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of his right lung.
At the CT procedure, the attending physician was defendant Richard B. Haak, M.D.,

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and defendant Jaspal Randhawa was the technologist. Other personnel were involved, but

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Plaintiff does not know their names.

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A right pleural chest tube was implanted and introduced into the right pleural cavity.

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Plaintiff experienced immediate dizziness, nausea, and impaired breathing. He was admitted as

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an “in patient” and placed in a bed in a secure ward. Plaintiff was chained to the bed for three

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days. He was placed on an external suction machine as a means to inflate his right lung. He was

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given pain medications, but they were ineffective and he continued to experience substantial

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pain and anxiety during his stay.
By late afternoon of November 23, 2016, all medical intubations were removed and

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Plaintiff was returned to the penitentiary. Plaintiff did not give his consent for a livery biopsy, a

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collapsed lung, the intubation of the external suction machine, or being chained to the bed.

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III.

DEFENDANT HAAK’S MOTION TO DISMISS
a. Legal Standards for Motions to Dismiss

In considering a motion to dismiss, the Court must accept all allegations of material fact

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in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v.

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Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts

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in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

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abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni,

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31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved

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in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se

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pleadings “must be held to less stringent standards than formal pleadings drafted by lawyers.”

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints

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should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

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A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

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complaint. See Iqbal, 556 U.S. at 679. Rule 8(a)(2) requires only “a short and plain statement

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of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair
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notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The

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issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to

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offer evidence to support the claims.” Scheuer, 416 U.S. at 236 (1974).

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In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials

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outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

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Gumataotao v. Dir. of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001).

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b. Defendant Haak’s Position
Defendant Haak moves to “dismiss Plaintiff’s causes of action for failure to obtain

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informed consent, battery, and claim for punitive damages….” (ECF No. 46 at 2.) The motion

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is made on the grounds that:
1. Plaintiff failed to allege sufficient facts to support a cognizable
claim for lack of informed consent under California law;
2. Plaintiff failed to state a claim for battery under California law;
and
3. Plaintiff failed to comply with the statutory requirements of
California Code of Civil Procedure §425.13….

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(Id.)
Defendant Haak argues that Plaintiff failed to state a claim for lack of informed consent

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because, “[d]espite what is alleged in the SAC, plaintiff provided written consent to the

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procedure performed by defendant on November 21, 2016.” (ECF No. 46-1 at 4.) Additionally,

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Plaintiff failed to state a claim for lack of informed consent because “[t]here are no allegations

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contained in the complaint stating that this defendant failed to provide plaintiff with the

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information a skilled medical practitioner would have provided under the circumstances, and

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plaintiff failed to allege the essential causal relationship between defendant's alleged failure to

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inform and plaintiff s alleged injury.” (Id. at 5-6.)

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As to Plaintiff’s claim for battery, defendant Haak argues that “plaintiff provided

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written consent to the procedure, as well as ‘further procedures which in the opinion of the

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supervising physician or surgeon may be indicated due to any emergency.’” (Id. at 6 (citation

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omitted).) “Because plaintiff provided consent, there can be no battery.” (Id. at 7.)
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Next, defendant Haak argues that “[b]ecause plaintiff violated California Code of Civil

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Procedure section 425.13 by alleging a claim for punitive damages in his prayer for relief,

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without first seeking a court order pursuant to the provisions of that statute, plaintiff s punitive

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damages claim should be dismissed against this defendant.” (Id. at 8.) Alternatively, defendant

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Haak argues that Plaintiff’s punitive damages claim should be dismissed because “Plaintiff’s

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factual allegations against this defendant fail to support a claim for punitive damages, as the

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factual allegations fall short of the requirement that plaintiff allege facts establishing conduct

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on the part of this defendant that amounts to oppression, fraud, or malice.” (Id. at 10.)

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Finally, defendant Haak argues that leave to amend should be denied as to Plaintiff’s

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claims for lack of informed consent and battery because “Plaintiff cannot cure the many

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deficiencies contained in the SAC.” (Id. at 12.)
c. Plaintiff’s Position

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Plaintiff argues that the motion to dismiss should be denied because it is “not wellgrounded as to the law and the facts.” (ECF No. 57 at 2.)
Plaintiff “opposes Haak’s request for judicial notice because the request is a pretext and

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a means to avoid the requirements of F.R.Civ.Pro. 56. Because the defendants submitted

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documents in support of their motion to dismiss that are not of record in this case, the defense

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motions should be treated as summary judgment motions and be denied as no discovery has

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taken place.” (Id.)1

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Plaintiff alleges that he “did not ever request to have an unnecessary and invasive liver

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biopsy or the resulting pneumothorax that came with it, and never knowingly gave consent for

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any such liver biopsy.” (Id. at 3.) Plaintiff argues that “[l]ogic dictates that no hospital staff

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would subject a patient to contraindicated, and non-emergency invasive procedures over such a

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patient’s express, verbal statements that authorization was not given at any time prior to being

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taken out [of] U.S.P. Atwater.” (Id.)

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Given the documents submitted by the defendants in this action, the Court converted the issue of
Plaintiff’s consent to the medical procedures to a motion for summary judgment. (ECF Nos. 70 & 74.) The Court
also allowed discovery and supplemental submissions on the issue. (ECF No. 70 at 1-2.)
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As to defendant Haak’s argument that Plaintiff never received permission to request

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punitive damages, Plaintiff argues that the Court gave its permission for Plaintiff to include

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punitive damages in the amended complaints. (Id. at 4.) Additionally, “Haak’s position assumes

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intimate knowledge of California law on the part of a pro se prisoner litigant, but Jorgenson is

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not a lawyer and cannot be held to the same standards as lawyers.” (Id. at 5.)

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Plaintiff includes a sworn declaration with his opposition. (Id. at 6-7.)

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d. Discussion
i. Plaintiff’s Claim for Negligent Failure to Obtain Informed Consent

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This case is not proceeding against defendant Haak on a claim for negligent failure to

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obtain informed consent. This case is only proceeding against defendant Haak on Plaintiff’s

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“state tort claims for medical negligence and battery….” (ECF No. 21 at 2.) All other claims

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against defendant Haak were dismissed. (Id.)2 Accordingly, the Court will recommend that

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defendant Haak’s request to dismiss Plaintiff’s claim for negligent failure to obtain informed

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consent be denied.
ii. Plaintiff’s Claim for Punitive Damages

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Defendant Haak first argues that Plaintiff’s claim for punitive damages should be

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dismissed because Plaintiff failed to comply with California Code of Civil Procedure § 425.13.

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However, as Chief Judge Lawrence J. O’Neill found in Scalia v. Cty. of Kern, 308 F. Supp. 3d

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1064, 1091 (E.D. Cal. 2018), this rule does not apply in federal court.
Defendants argue that the prayer for punitive damages should be
dismissed with respect to Plaintiff's medical negligence claim as
well, because California law requires that a plaintiff pursuing a
claim for punitive damages against a healthcare provider must
first obtain court approval under California Code of Civil
Procedure § 425.13, which provides in pertinent part that “[i]n
any action for damages arising out of the professional negligence

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Plaintiff’s claim for negligent failure to obtain informed consent was appropriately dismissed at
screening because Plaintiff is claiming that he never provided informed consent for the procedures, which, under
California law, is a battery claim. “An action should be pleaded in negligence when the doctor performs an
operation to which plaintiff consents, but without disclosing sufficient information about the risks inherent in the
surgery. The battery theory should be reserved for those circumstances when a doctor performs an operation to
which the patient has not consented.” Saxena v. Goffney, 159 Cal. App. 4th 316, 324 (2008) (citations and internal
quotation marks omitted).
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of a health care provider, no claim for punitive damages shall be
included in a complaint or other pleading unless the court enters
an order allowing an amended pleading that includes a claim for
punitive damages to be filed.” Cal. Civ. Proc. Code § 425.13(a).
It requires the party to establish a “substantial probability that the
plaintiff will prevail on the claim” before being permitted to
include a claim for punitive damages. Id. In opposition, Plaintiff
discussed only the availability of punitive damages with respect
to the § 1983 claim and failed to respond with respect to the
negligence claim. Nevertheless, the Court finds that Section
425.13 is inapplicable here.
California district courts have split on whether Section 425.13
applies in federal court, and the Ninth Circuit has not resolved the
split. Elias, 2017 WL 1013122, at *5. Most courts addressing the
issue have examined whether the rule is a procedural one that
would not apply in federal court, or a substantive one that it
would. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,
82 L.Ed. 1188 (1938). In Jackson v. E. Bay Hosp., the court held
that Section 425.13 “is essentially a method of managing or
directing a plaintiff's pleadings, rather than a determination of
substantive rights” and declined to apply it, finding that the
procedural hoop was not “so intimately bound up” with the
substantive law that it must be applied in a diversity case. 980
F.Supp. 1341, 1352 (N.D. Cal. 1997). Relying on the California
Supreme Court's explanation that the purpose of the rule was to
establish a pretrial mechanism to determine whether an action for
punitive damages would be allowed to proceed, the court
declined to graft this requirement onto federal litigation because
“federal courts readily accomplish the purposes contemplated by
section 425.13 through their case management procedures.
Section 425.13 does not supplant those.” Id. at 1353 (citing Cent.
Pathology Serv. Med. Clinic, Inc. v. Superior Court, 3 Cal. 4th
181, 189, 10 Cal.Rptr.2d 208, 832 P.2d 924 (1992). See also
Burrows v. Redbud Cmty. Hosp. Dist., 188 F.R.D. 356, 361 (N.D.
Cal. 1997) (“[S]ection 425.13 is a procedural rule for managing
and directing pleadings: it does not create substantive limits on
the damages a plaintiff may seek.”). One district court found
Section 425.13 to be a procedural rule inapplicable in federal
court because it conflicts with Federal Rule of Civil Procedure
8(a)(3), which provides that “[a] pleading that states a claim for
relief must contain ... a demand for the relief sought, which may
include relief in the alternative or different types of relief.” Fed.
R. Civ. P. 8(a)(3). The court in Estate of Prasad ex rel. Prasad v.
County of Sutter held that “because Rule 8(a)(3) allows a plaintiff
to request in her initial complaint all the relief she seeks, it says
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implicitly, but with unmistakable clarity[,] that a plaintiff is not
required to wait until a later stage of the litigation to include a
prayer for punitive damages, nor is she required to proffer
evidence or obtain leave of court before doing so.” 958
F.Supp.2d 1101, 1121 (E.D. Cal. 2013) (quoting Cohen v. Office
Depot, Inc., 184 F.3d 1292, 1298 (11th Cir. 1999) (internal
quotation marks omitted) (construing similar state law requiring
leave of court to plead punitive damages claim), opinion vacated
in part on other grounds on reh'g, 204 F.3d 1069 (11th Cir.
2000) ). The Court agrees with the logic of these cases and holds
that Section 425.13 does not affect the substance of the
negligence claim or burden of proof for punitive damages but
merely manages the pleadings by dictating how and when a
plaintiff may plead the request.

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Scalia, 308 F. Supp. 3d at 1090–91 (alterations in original) (footnotes omitted).

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Thus, defendant Haak’s argument that Plaintiff’s claim for punitive damages should be

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dismissed because Plaintiff failed to comply with California Code of Civil Procedure § 425.13

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fails.

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As to defendant Haak’s argument that Plaintiff’s claim for punitive damages should be

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dismissed because Plaintiff has not alleged sufficient facts to support his claim for punitive

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damages, this argument fails as well. Rule 54(c) provides that a final judgment “should grant

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the relief to which each party is entitled, even if the party has not demanded that relief in its

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pleadings.” Fed. R. Civ. P. 54(c). “Citing this rule, the Ninth Circuit has found that a plaintiff

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need not include in his complaint a ‘specific prayer for emotional distress or punitive damages’

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in order to give the opposing party proper notice of the claim against him.” Preayer v. Ryan,

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2017 WL 2351601, at *6 (D. Ariz. May 31, 2017) (quoting Cancellier v. Federated Dep't

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Stores, 672 F.2d 1312, 1319 (9th Cir. 1982)). If a plaintiff need not even include a prayer for

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punitive damages in his complaint to receive an award of punitive damages, this Court agrees

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that it “makes little sense” to require detailed factual allegations to support a demand for

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punitive damages. Elias v. Navasartian, 2017 WL 1013122, at *5 (citing Soltys v. Costello, 520

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F.3d 737, 742 (7th Cir. 2008)).

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Based on the foregoing, the Court will recommend that defendant Haak’s request to
dismiss Plaintiff’s request for punitive damages be denied.
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iii. Plaintiff’s Battery Claim

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1. Legal Standards
“A claim based on lack of informed consent—which sounds in negligence—arises

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when the doctor performs a procedure without first adequately disclosing the risks and

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alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a

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procedure without obtaining any consent.” Saxena, 159 Cal. App. 4th at 324.
Under California civil law, the elements of a battery are: “(1) the defendant

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intentionally did an act that resulted in harmful or offensive contact with the plaintiff's person,

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(2) the plaintiff did not consent to the contact, and (3) the contact caused injury, damage, loss

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or harm to the plaintiff.” Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007). Accord

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Piedra v. Dugan, 123 Cal. App. 4th 1483, 1495 (2004).

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2. Analysis
Defendant Haak argues that Plaintiff’s battery claim should be dismissed because

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Plaintiff provided written consent to the procedures. This argument was converted to a motion

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for summary judgment, (ECF Nos. 70 & 74), and will be addressed in a separate order.

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IV.

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Based on the foregoing, IT IS HEREBY RECOMMENDED that defendant Haak’s

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RECOMMENDATION

partial motion to dismiss be DENIED.3

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These findings and recommendations will be submitted to the United States district

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court judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within

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fourteen (14) days after being served with a copy of these findings and recommendations, any

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party may file written objections with the court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within seven (7) days

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after service of the objections.

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The Court will address the portion of the motion to dismiss that was converted to a motion for summary
judgment in a separate order.

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The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 23, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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