Long v. Corizon Health, Inc. et al.

Filing 11

ORDER to Assign District Judge; and FINDINGS and RECOMMENDATIONS to Allow This Case to Proceed Only Against Jane Doe on an Eighth Amendment Claim re 9 , signed by Magistrate Judge Jennifer L. Thurston on 11/14/18. This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston. The New Case No. is: 1:17-cv-0898-LJO-JLT. 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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PHILLIP J. LONG,
Plaintiff,

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ORDER TO ASSIGN DISTRICT JUDGE;
AND FINDINGS AND
RECOMMENDATIONS TO ALLOW THIS
CASE TO PROCEED ONLY AGAINST
JANE DOE ON AN EIGHTH
AMENDMENT CLAIM
(Doc. 9)

v.

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CASE NO. 1:17-cv-00898-JLT (PC)

CORIZON HEALTH, INC., et al.,
Defendants.

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FOURTEEN-DAY DEADLINE

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The Court screened Plaintiff’s First Amended Complaint, which asserted claims against

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several defendants, and found it stated only an Eighth Amendment medical indifference claim

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against Jane Doe. Plaintiff has filed a Second Amended Complaint, which is now before the Court

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for screening.

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I.

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,” or that fail to state a claim upon which relief may be granted, or that seek

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

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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

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

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

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiffs must set forth “sufficient factual matter, accepted as true, to

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state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility

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demands more than the mere possibility that a defendant committed misconduct and, while factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.

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Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under section 1983,

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a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws

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of the United States was violated and (2) that the alleged violation was committed by a person

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acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v.

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Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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Under section 1983 the Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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This requires the presentation of factual allegations sufficient to state a plausible claim for relief.

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Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners

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proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and

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to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)

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(citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the

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

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III.

Plaintiff’s Allegations

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Plaintiff is currently held at Fresno County Jail (“FCJ”) in Fresno, California and complains

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of acts that occurred there. He names as defendants Corizon Health, Inc. (“Corizon”), the health

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care provider at the FCJ, and Jane Doe, an FCJ/Corizon nurse.

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Plaintiff’s allegations can be fairly summarized as follows:

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On July 08, 2016, plaintiff injured his ankle in the FCJ gym. He was in pain and lacked

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mobility, and his ankle was swelling. He was taken with the assistance of other prisoners and

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correctional staff to Jane Doe who failed to treat or diagnose the injury. She did not x-ray the ankle,

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did not provide pain medication, did not wrap the ankle, and did not schedule any follow-up

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appointments. Plaintiff suffered in pain until, weeks later, he was properly treated.
Defendant Corizon implemented a policy “of having nurses or lower level personel [sic]

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only initially see, diagnose and treat all inmates regardless of the level of severity of injury or

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illness…” Corizon also has a policy of “not channeling” a serious medical need “for immediate

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emergency medical care” whether through “a physician or local hospital emergency care.”

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IV.

Analysis

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A.

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Plaintiff, who names Corizon as an entity defendant acting on behalf of FCJ, appears to be

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Municipal Liability

bringing a Monell claim.

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Counties may be liable under section 1983. “[S]ection 1983 imposes liability only on

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‘persons’ who, under color of law, deprive others of their constitutional rights, [and] the Supreme

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Court has construed the term ‘persons’ to include municipalities such as the County.” Castro v.

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Cty. of Los Angeles, 797 F.3d 654, 670 (9th Cir. 2015) (citing Monell v. Dep’t of Social Services,

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436 U.S. 658, 690-91 (1978)). Counties may not be held liable for the actions of their employees

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under a theory of respondeat superior, but they may be held liable for a constitutional violation if

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an action taken pursuant to a policy, be it a formal or informal policy, caused the underlying

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violation. Castro, 797 F.3d at 670 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 131 (1989)

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and Monell, 436 U.S. at 691) (quotation marks omitted); see also Simmons v. Navajo Cty., Ariz.,

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609 F.3d 1011, 1021 (9th Cir. 2010) (municipal liability claim cannot be maintained unless there

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is an underlying constitutional violation).

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Municipal liability may also be imposed where the local government unit’s omission led to

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the constitutional violation by its employee. Gibson v. Cty. Of Washoe, Nev., 290 F.3d 1175, 1186

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(9th Cir. 2002). Under this route to municipal liability, the “plaintiff must show that the

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municipality’s deliberate indifference led to its omission and that the omission caused the employee

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to commit the constitutional violation.” Id. This kind of deliberate indifference is found when the

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need to remedy the omission is so obvious, and the failure to act so likely to result in the violation

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of rights, that the municipality reasonably can be said to have been deliberately indifferent when it

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failed to act. Id. at 1195.

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Corizon is a private entity that provides health care for FCJ. Plaintiff may assert Monell

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claims against a private entity contracting with a municipality provided: (1) the private entity acted

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under color of state law; (2) a constitutional violation occurred; and (3) the violation was caused

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by an official policy or custom. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir.2012).

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As with the previous iterations of his pleading, plaintiff makes general allegations

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concerning a Corizon policy of requiring lower level medical staff to treat inmates and a policy of

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denying access to a physician or hospital even for medical emergencies. He does not, however, link

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this policy to any facts which “might plausibly suggest” that Corizon itself violated plaintiff’s

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constitutional rights. See Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

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(applying Iqbal’s pleading standards to Monell claims). Absent these facts, the Court finds

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plaintiff’s allegations as to Corizon insufficient to state a cognizable claim. Because this was

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plaintiff’s third attempt to state a claim against this defendant, the undersigned will recommend

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that Corizon be dismissed with prejudice.

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B.

Eighth Amendment

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The government has an "obligation to provide medical care for those whom it is punishing

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by incarceration," and failure to meet that obligation can constitute an Eighth Amendment violation

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cognizable under § 1983. Estelle v. Gamble, 429 U.S. 97, 103-105 (1976). To establish an Eighth

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Amendment violation, a prisoner "must satisfy both the objective and subjective components of a

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two-part test." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted). A prisoner

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must show (1) 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, and (2)

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that the defendant’s response to the need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (citing McGuckin v. Smith, 974 F.2d 1050, 1559-1560 (9th Cir. 1991),

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overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

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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). A mere "difference of medical opinion . . . [is] insufficient, as a matter of law, to

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establish deliberate indifference." Id. at 1058. Mere indifference, negligence, or medical

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malpractice is not sufficient to support the claim. Broughton v. Cutter Labs., 622 F.2d 458, 460

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(9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06. A prisoner can establish deliberate indifference

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by showing that officials intentionally interfered with his medical treatment for reasons unrelated

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to the prisoner’s medical needs. See Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992).

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a) Private Individual Liability

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Plaintiff asserts an Eighth Amendment claim against Jane Doe, a private individual

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employed by a private entity. The Court considers first whether plaintiff may assert a claim against

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a private party.

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To state a claim under section 1983, a plaintiff must allege that the deprivation of a right

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secured by the federal constitution or statutory law was committed by a person acting under color

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of state law. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “While generally not

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applicable to private parties, a § 1983 action can lie against a private party when he is a willful

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participant in joint action with the State or its agents.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th

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Cir. 2003).

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The Ninth Circuit has identified four circumstances under which a private person may be

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deemed to be acting under color of state law. Under the “public function” test, “when private

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individuals or groups are endowed by the State with powers or functions governmental in nature,

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they become agencies or instrumentalities of the State and subject to its constitutional limitations.”

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Kirtley, 326 F.3d at 1093 (quoting Lee v. Katz, 276 F.3d 550, 554-55 (9th Cir. 2002)). Under the

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“joint action test,” a court will consider whether “the state has so far insinuated itself into a position

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of interdependence with the private entity that it must be recognized as a joint participant in the

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challenged activity” and “knowingly accepts the benefits derived from unconstitutional behavior.”

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Kirtley, 326 F.3d at 1093 (quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th

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Cir. 1995)). Under the “governmental coercion or compulsion” test, the court considers “whether

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the coercive influence or ‘significant encouragement’ of the state effectively converts a private

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action into a government action.” Kirtley, 326 F.3d at 1094 (quoting Sutton v. Providence St.

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Joseph Medical Center, 192 F.3d 826, 836-37 (9th Cir. 1999)). Finally, under the “government

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nexus” test, the court asks whether “there is such a close nexus between the State and the challenged

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action that the seemingly private behavior may be fairly treated as that of the State itself.” Kirtley,

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326 F.3d at 1095 (quoting Brentwood Academy v. Tennessee Secondary School Athletic Ass’n,

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531 U.S. 288, 295 (2001)).

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Plaintiff has sued Jane Doe, ostensibly a private actor employed by Corizon, for failing to

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provide adequate medical care at FCJ. Corizon, in turn, is alleged to have contracted with FCJ to

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provide medical services to inmates. This suggests that Corizon, a private entity, has contracted

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with FCJ to provide medical services to inmates

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A private physician or hospital that contracts with a public prison system to provide

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treatment for inmates performs a public function and acts under color of law for purposes of § 1983.

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See West v. Atkins, 487 U.S. 42, 56 n.15 (1988) (“[A]lthough the provision of medical services is

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a function traditionally performed by private individuals, the context in which respondent performs

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these services for the State (quite apart from the source of remuneration) distinguishes the

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relationship between respondent and West from the ordinary physician-patient relationship.

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Respondent carried out his duties at the state prison within the prison hospital. That correctional

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setting, specifically designed to be removed from the community, inevitably affects the exercise of

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professional judgment.”); see also Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir.

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1991) (“Here the district court's sua sponte dismissal was improper because Lopez's complaint

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alleges that defendants Maryvale Samaritan Hospital (“Maryvale”) and Southwest Ambulance

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Service (“Southwest”) are under contract with the state of Arizona to provide medical services to

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indigent citizens. These allegations are sufficient to support a section 1983 action because under

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either the joint action or the government nexus analysis they set forth a claim that defendants

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Southwest and Maryvale act under color of state law.”).

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Since Corizon’s provision of medical care to inmate at FCJ amounts to the performance of

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a public function, the undersigned finds that plaintiff is not precluded from bringing a §1983 claim

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against the private individual, Jane Doe, a Corizon nurse.
b) Plaintiff’s Claim

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Having established that a § 1983 claim may be asserted against Jane Doe, the Court now

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turns to whether Plaintiff’s allegations are sufficient to state a claim. He alleges that he was taken

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to see this defendant with an extremely swollen ankle, in extreme pain, and assistance needed in

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walking. Although these symptoms suggest a serious injury, Jane Doe did not provide any pain

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medication, did not wrap the ankle, did not order an x-ray, and did not schedule a follow-up

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appointment. This reflects a nearly total absence of care and is sufficient to find that Jane Doe was

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deliberately indifferent to plaintiff’s serious medical need.

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V.

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Doe Defendant
Plaintiff alleges a cognizable claim against Jane Doe only. Although the use of Doe

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Defendants is generally disfavored, the Ninth Circuit requires that plaintiff be provided with “an

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opportunity through discovery to identify the unknown defendants, unless it is clear that

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discovery would not uncover their identities….” Wakefield v. Thompson, 177 F.3d 1160, 1163

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(9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). However, the

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Court cannot order the Marshal to serve a defendant whose identity is unknown.

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Therefore, plaintiff may proceed in this action alleging only a cognizable claim against

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Jane Doe, but he is advised that he alone is responsible for identifying Doe and substituting a

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named defendant in her place. If the district judge assigned to this case adopts these findings and

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recommendations, the Court will open discovery for the limited purpose of identifying Defendant

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Jane Doe. Plaintiff will be limited to seeking discovery pursuant to Rule 45 of the Federal Rules

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of Civil Procedure and will be entitled to the issuance of subpoenas duces tecum through which

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plaintiff can subpoena documents to discover Jane Doe’s name. Fed. R. Civ. P. 45.

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VI.

Conclusion and Order

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Based on the foregoing, the Court ORDERS that a district judge be assigned to this case.

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The Court RECOMMENDS that this action proceed only on plaintiff’s Eighth Amendment

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claim against defendant Jane Doe, and all other claims and defendants be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 14, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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