Torrence v. Hseuh et al

Filing 60

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/8/11 ORDERING that the Clerk assign a district judge to this case; This case has been reassigned to U.S. District Judge Kimberly J. Mueller and U.S. Magistrate J udge Kendall J. Newman and the new case number is 2:10-cv-1222 KJM KJN (PC). IT IS RECOMMENDED that 52 Motion to Dismiss filed by J. Champion be granted; and defendant Champion be dismissed from this action. Motion referred to Judge Mueller. Objections to F&R due w/in 21 days. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEAVON E. TORRENCE,

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Plaintiff,

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vs.

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No. 2:10-cv-1222 KJN P

F. HSEUH, et al.,

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Defendants.

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ORDER AND
FINDINGS AND RECOMMENDATIONS
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I. Introduction
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis,

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with an action filed pursuant to 42 U.S.C. § 1983. On July 25, 2011, defendant Champion filed a

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motion to dismiss on the grounds that the first amended complaint (“FAC”) fails to state a

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cognizable civil rights claim. Plaintiff filed an opposition on August 19, 2011. Defendant

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Champion filed a reply on August 29, 2011. For the reasons set forth below, the undersigned

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recommends that defendant Champion’s motion be granted.

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II. Motion to Dismiss

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A. Background

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Plaintiff is proceeding on the FAC filed September 22, 2010. (Dkt. No. 10.)

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Plaintiff’s sole allegation as to defendant Champion states:
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Plaintiff alleges that defendants R.L. Andreasen, MD, . . . J.
Champion, RN Health Care Services; Joseph Bick, MD Chief
Deputy Clinical Services. . . showed wanton disregard and was
deliberately indifferent to plaintiff’s serious medical needs by
stating that plaintiff was or [has] received adequate medical care
for his medical problems and that he “[has] received regular and
appropriate medical care for the issues raised in this appeal.”
(Dkt. No. 10 at 9.)
Defendant Champion contends this allegation is insufficient to state a claim for

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deliberate indifference to plaintiff’s serious medical needs. Moreover, even if defendant

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Champion made such a statement in a response to a CDC appeal, defendant Champion argues

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that involvement in the appeals process is insufficient to establish liability. Plaintiff argues that

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defendant Champion reviewed the second level of plaintiff’s appeal CMF-06-10466, and

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therefore had access to plaintiff’s entire medical records, as well as inmate appeal CMF-08-0983.

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(Dkt. No. 56 at 2.) It appears plaintiff argues defendant Champion failed to provide plaintiff

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medical care in response to appeal CMF-06-10466. Defendant replies that a complaint must be

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complete in and of itself and plaintiff did not submit any prisoner appeals with the FAC. (Dkt.

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No. 57 at 2.) Thus, defendant argues that the FAC, standing alone, fails to state a cognizable

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civil rights claim against defendant Champion.

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B. Legal Standards

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Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to

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dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

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In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the

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court must accept as true the allegations of the complaint in question, Erickson v. Pardus,

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551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th

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Cir. 1999). In order to survive dismissal for failure to state a claim, a complaint must contain

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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not necessary; the statement

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[of facts] need only give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.” Erickson, 551 U.S. 89 (internal citations omitted).

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A motion to dismiss for failure to state a claim should not be granted unless it

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appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which

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would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro

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se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner,

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404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally.

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Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s

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liberal interpretation of a pro se complaint may not supply essential elements of the claim that

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were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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C. Application

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Defendant Champion is correct that the FAC, standing alone, fails to state a

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cognizable civil rights claim against defendant Champion. Plaintiff provided no facts

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demonstrating defendant Champion was deliberately indifferent. At most, plaintiff refers broadly

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to a list of defendants who allegedly had a role in addressing plaintiff’s administrative appeals.

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Plaintiff provided exhibits to his original complaint that include copies of

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plaintiff’s administrative appeal CMF-06-09-10466. While Local Rule 220 requires that an

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amended complaint be complete in itself without reference to any prior pleading, the court may

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review exhibits submitted by the plaintiff. Here, however, appeal CMF-06-09-10466 does not

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reflect that defendant Champion performed the second level review of appeal CMF-06-09-10466.

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(Dkt. No. 1 at 31.) Rather, the second level of review was performed by Joseph Bick, M.D.

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(Dkt. No. 1 at 30-31.) The first level of review was performed by R.L. Andreasen, M.D. (Dkt.

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No. 1 at 26-29.) The only reference to “Champion” is a notation at the bottom right-hand corner

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of the first page of appeal CMF-06-09-10466, which states:

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////
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1st - Champion
2 - HCA

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(Dkt. No. 1 at 23.) This notation is insufficient to demonstrate defendant Champion was

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involved in reviewing plaintiff’s appeal CMF-06-09-10466. Plaintiff provided no record cite to

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the contrary. (Dkt. No. 56.) This brief reference to defendant Champion, even in conjunction

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with plaintiff’s allegation in the FAC, is also insufficient to show that defendant Champion was

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deliberately indifferent to plaintiff’s serious medical needs. Plaintiff has provided no additional

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factual allegations in his opposition. (Dkt. No. 56.) Both Dr. Bick and Dr. Andreasen are named

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as defendants, and both performed the first and second level reviews of plaintiff’s appeal CMF-

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M-08-0983 as well (dkt. no. 1 at 14-18). Accordingly, defendant Champion’s motion to dismiss

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should be granted. Because plaintiff relies on the administrative appeals to provide the factual

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allegations as to defendant Champion, and the exhibits provided by plaintiff fail to demonstrate

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defendant Champion was involved, it would be futile to grant plaintiff leave to file a second

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amended complaint.

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III. Conclusion

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Accordingly, this court recommends that defendant Champion’s motion to dismiss
be granted, and defendant Champion be dismissed from this action.

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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
Court is directed to assign a district judge to this case; and

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IT IS RECOMMENDED that:

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1. Defendant Champion’s July 25, 2011 motion to dismiss (dkt. no. 21) be

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granted; and

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2. Defendant Champion be dismissed from this action.

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These findings and recommendations are submitted to the United States District

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

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one days 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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DATED: September 8, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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