Staggs et al v. Doctors Hospital of Manteca, Inc. et al

Filing 146

ORDER signed by Chief Judge Morrison C. England, Jr. on 3/7/2016 ORDERING that Defendants' 121 , 124 Motion to Dismiss is DENIED. Plaintiffs' 126 Motion to Strike is GRANTED IN PART and DENIED IN PART. Plaintiffs' 130 Motion to Strike is DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LINNIE STAGGS, as Administrator of
the ESTATE OF ROBERT E.
STAGGS, Deceased, and MELISSA
STAGGS,
Plaintiffs,

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No. 2:11-CV-414-MCE-KJN

MEMORANDUM AND ORDER

v.
DOCTOR’S HOSPITAL OF
MANTECA, INC., et al.,
Defendants.

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Plaintiff Linnie Staggs, as administrator of the Estate of Robert E. Staggs, and

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Melissa Staggs (collectively “Plaintiffs”) bring claims against Doctor’s Hospital of

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Manteca, Inc. (“DHM”) and individual defendants (collectively “Defendants”) seeking

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redress for the medical treatment and subsequent death of Robert E. Staggs

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(“Decedent”) while in custody at the Sierra Conservation Center (“SCC”). The individual

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defendants include, among others, Mario Sattah, M.D. (“Sattah”), Lincoln Russin, M.D.

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(“Russin”), and James Owen, M.D. (“Owen”). Plaintiffs allege that defendants DHM and

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Sattah violated Decedent’s Eighth Amendment rights by exhibiting deliberate

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indifference to Decedent’s medical condition. Plaintiffs allege that defendants Russin

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and Owen negligently provided medical care to Decedent.
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Presently before the Court is Defendants’ Motion to Dismiss under Rule1 12(b)(6).

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ECF No. 124.2 For the following reasons Defendants’ Motion is DENIED.3 Also before

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the Court are Plaintiffs’ Motions to Strike Defendants’ various affirmative defenses. ECF

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Nos. 126 and 130. Those Motions are GRANTED in part and DENIED in part.

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BACKGROUND4

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Decedent had the Hepatitis C virus and a history of liver problems, including
cirrhosis. In 2009, while incarcerated at SCC, he began experiencing symptoms

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associated with liver failure. Prison medical staff treated Decedent’s symptoms with

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routine painkillers and performed a series of tests. Plaintiffs allege that the tests showed

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signs of acute Hepatitis C liver disease, cirrhosis, and hepatocellular carcinoma (“HCC”).

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Decedent also underwent two MRIs which reportedly showed a lesion on his liver.

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Prison medical staff continued to treat Decedent’s symptoms with routine painkillers.

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On December 26, 2009, Decedent went “man-down” at SCC, an act which elicited

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immediate attention from custodial and medical personnel at the prison. Further testing

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revealed a 5 cm lesion on Decedent’s liver and other smaller lesions throughout the

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liver. Although these results indicated the presence of HCC, medical personnel

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allegedly focused on other cancer-types as the cause of Decedent’s health problems.

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During approximately the same period in December 2009, prison medical personnel

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decided that Decedent should undergo a “three-pass core” liver biopsy in January 2010.

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Plaintiffs allege that this decision was erroneous and unnecessary because (1) where

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cirrhosis is present, conducting a biopsy when lesions are suspected to be HCC creates

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Unless otherwise noted, all references to “Rule” or “the Rules” refer to the Federal Rules of Civil
Procedure.
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The Court required that Defendants renotice their initial Motion (ECF No. 121).

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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. E.D. Cal. Local Rule 230(g).
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The following facts are taken from Plaintiffs’ Fourth Amended Complaint. ECF No. 117.

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a substantial risk that the tumor will spread along the needle track; and (2) a liver biopsy,

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while safe in a normal liver, is much more likely to cause bleeding in a cirrhotic liver.

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Two hospitals allegedly refused to perform the procedure because of associated risks to

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Decedent. Plaintiffs allege that other procedures, including a “fine needle aspirate” of

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the lesion and further testing, should have been conducted instead of the three-pass

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core biopsy.

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On January 22, 2010, Defendant Sattah performed the three-pass core biopsy at

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Defendant DHM’s facility. Although the universal protocol for the biopsy requires three

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to four hours of supine rest after the procedure, Defendants allegedly failed to ensure

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that Decedent received proper rest. Plaintiffs allege that less than an hour after the

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biopsy Decedent was ordered to leave the hospital and transferred back to SCC. In the

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following days, Decedent’s condition grew significantly worse: his abdomen swelled; he

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could no longer urinate, began vomiting, could not sleep, and was in severe pain.

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Decedent’s attempts to alert SCC personnel of his condition allegedly failed.

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On January 24, 2010, Decedent again went “man-down.” On January 25, 2010,

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Decedent was taken to San Joaquin Medical Center for emergency treatment. On

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January 26, 2015, the liver biopsy confirmed the HCC diagnosis. On February 4, 2010,

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Decedent was transferred to a hospice facility where he died on February 12, 2010. The

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cause of death was blood loss into his peritoneum, allegedly as a result of the three-

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pass core liver biopsy.

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STANDARD

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A. Motion to Dismiss

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On a motion to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6), all allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336,337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain
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statement of the claim showing that the pleader is entitled to relief” in order to “give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require

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detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of

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his entitlement to relief requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Id. (internal citations and

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quotations omitted). A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)

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(quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a

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right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles

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Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)

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(stating that the pleading must contain something more than “a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.”)).

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Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket

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assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and

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quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

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to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of

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the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles

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Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough

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facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . .

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have not nudged their claims across the line from conceivable to plausible, their

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complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed

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even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a

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recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S.

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232, 236 (1974)).

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B. Motion to Strike

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An affirmative defense is an “assertion of facts and arguments that, if true, will

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defeat the plaintiff’s [ ] claim, even if all the allegations in the complaint are true.” Black’s

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Law Dictionary (10th ed. 2014). A court may strike an insufficiently pled affirmative

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defense under Federal Rule of Civil Procedure 12(f).
District courts in this circuit were previously split on whether the heightened

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pleading standard that the United States Supreme Court announced in Twombly and

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Iqbal applied to affirmative defenses. Some courts, including this Court, concluded that

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affirmative defenses were subject to the heightened pleading standard. See, e.g., Wine

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Group LLC, v. L. and R. Wine Co., No. 2:10-cv-022040-MCE-KJN, 2011 WL 130236, at

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*2 (E.D. Cal. Jan. 4, 2011); Dodson v. Strategic Rests. Acquisition Co. II, LLC,

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289 F.R.D. 595 (E.D. Cal. 2013). Other courts, however, declined to apply the

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heightened pleading standard to affirmative defenses, citing Wyshak v. City National

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Bank, 607 F.2d 824, 826 (9th Cir. 1979), for the proposition that the pleadings need only

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provide the plaintiff “fair notice” of the defense. See, e.g., Kohler v. Staples the Office

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Superstore, LLC, 291 F.R.D. 464, 468 (S.D. Cal. 2013).
The Ninth Circuit, however, has resolved the split in the district courts. In Kohler

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v. Flava Enterprises, Inc., the Ninth Circuit explained that “the ‘fair notice’ required by the

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pleading standards only require[s] describing [an affirmative] defense in ‘general terms.’”

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779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan Wright & Arthur Miller,

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Federal Practice and Procedure, § 1274 (3d ed. 1998)).5 Accordingly, this Court

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applies the “fair notice” standard, and not the heightened pleading standard announced

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in Twombly and Iqbal, when evaluating motions to strike affirmative defenses.

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The specific sentence that the Ninth Circuit quoted in Kohler provides: “As numerous federal
courts have held, an affirmative defense may be pleaded in general terms and will be held to be sufficient,
and therefore invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the nature of
the defense.” Wright & Miller, § 1274 (footnotes omitted).

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ANALYSIS

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A. Motion to Dismiss

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Plaintiffs’ claims for relief against Defendants DHM and Sattah arise under

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42 U.S.C. § 1983. Plaintiffs allege that Defendants acted with deliberate indifference

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towards Decedent in violation of the Eighth Amendment.

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Although medical malpractice does not become a constitutional violation merely

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because the victim is a prisoner, deliberate indifference to the serious medical needs of

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prisoners violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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To prevail here, Plaintiffs must allege that the course of treatment Defendants pursued

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was medically unacceptable under the circumstances, and that Defendants pursued this

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course in conscious disregard of an excessive risk to Decedent’s health. See Jackson v.

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McIntosh, 90 F.2d 330, 332 (9th Cir. 1996). Plaintiffs must allege more than merely “a

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difference of medical opinion” as to the proper course of treatment. See Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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Plaintiffs allege that Defendants performed the three-pass core liver biopsy on

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Decedent after two hospitals refused to perform the procedure under any circumstances

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because of an elevated risk of internal bleeding. This repeated refusal, construed in the

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light most favorable to Plaintiffs, plausibly suggests that Defendants’ performance of the

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biopsy was “medically unacceptable under the circumstances.” Jackson, 90 F.2d at 332.

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This fact sufficiently alleges more than a difference of medical opinion. See Sanchez,

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891 F.2d at 242.

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The allegation that two hospitals refused to perform the procedure also

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adequately supports Plaintiffs’ claim that Defendants consciously disregarded a

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substantial risk of serious harm to Decedent. See Toguchi v. Chung, 391 F.2d 1051,

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1059 (9th Cir. 2004). Defendants argue that they had no knowledge of the two hospitals’

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prior refusal or of the Decedent’s subsequent complications. This argument, however, is

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a factual one, and at this early stage of the litigation, all favorable inferences should be
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resolved in Plaintiffs’ favor. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,337-38 (9th

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Cir. 1996). This includes the inference that if a defendant’s response to a known risk is

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obviously inadequate, then the defendant may have recognized the inappropriateness of

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his conduct. Thompson v. King, 730 F.3d 743, 747 (8th Cir. 2013) (observing that on

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summary judgment circumstantial evidence can be used to establish a subjective mental

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state in a deliberate indifference claim). Plaintiffs have alleged that Decedent’s liver

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problems were known and the three-pass core liver biopsy was an obviously inadequate

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response. These allegations support an inference that Defendants consciously

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disregarded substantial risks to the Decedent; Plaintiffs therefore allege sufficient facts to

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state a claim for deliberate indifference. The Motion to Dismiss is accordingly DENIED.

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Defendants also seek to dismiss Plaintiffs’ prayer for damages for pain, suffering,

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emotional distress, and punitive damages against Defendants. Defendants argue that

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Cal. Civ. Proc. §§ 377.34 and 425.13 limit damages payable to Decedent’s estate and

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place procedural requirements on claims against health care providers. However,

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Plaintiffs only bring federal constitutional claims against these Defendants, not state law

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negligence claims. See Chaudhry v. City of L.A., 751 F.3d 1096, 1105 (9th Cir. 2014)

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(finding that § 377.34 does not apply to § 1983 claims); Estate of Prasad ex rel. Prasad

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v. Cty. of Sutter, 958 F. Supp. 2d 1101, 1121 (E.D. Cal. 2013) (observing that procedural

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requirement of § 425.13 is inapplicable in federal court). Defendants’ request to dismiss

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Plaintiffs’ prayer for damagers is therefore DENIED.

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B. Motion to Strike

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Plaintiffs move to strike various affirmative defenses under Rule 12(f). Motions to

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strike are disfavored in part because of the limited importance of pleading in federal

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practice. Spring v. Fair Isaac Corp., 2015 WL 7188234, at *2 (E.D. Cal. Nov. 16, 2015).

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In the Ninth Circuit, the “fair notice” required by the pleading standard requires only

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describing an affirmative defense in general terms. Castellano v. Access Premier

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Realty7, Inc., 2015 WL 7423821, at *2 (E.D. Cal. Nov. 20, 2015).

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With two exceptions, Defendants’ affirmative defenses satisfy the minimal

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requirement of fair notice. Defendants Russin’s and Owen’s First Affirmative Defense,

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“Failure to State Cause of Action,” attacks Plaintiffs’ prima facie case and need not be

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pleaded as an affirmative defense. See Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080,

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1088 (9th Cir. 2002) (demonstration that plaintiff has not met burden of proof is not

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affirmative defense). Russin’s and Owen’s Nineteenth Affirmative Defense, “Other

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Defenses,” does not provide fair notice of the asserted defense. Plaintiffs’ Motions to

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Strike are therefore GRANTED as to Russin and Owen’s First and Nineteenth

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Affirmative Defenses, but otherwise DENIED.

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CONCLUSION

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Defendants’ Motion to Dismiss (ECF Nos. 121 and 124) is DENIED.

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Plaintiffs’ Motions to Strike are GRANTED in part and DENIED in part, as follows:

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1. Plaintiffs’ Motion to Strike (ECF No. 126) is GRANTED as to Defendants

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Russin and Owen’s First and Nineteenth Affirmative Defenses. The Motion is

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DENIED as to all other affirmative defenses.

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2. Plaintiffs’ Motion to Strike (ECF No. 130) is DENIED in its entirety.

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IT IS SO ORDERED.

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Dated: March 7, 2016

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