Martin v. Beck

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 9/18/12 ORDERING that a district judge be assigned to this case; Plaintiffs 13 motion to enter default is DENIED; Plaintiffs 14 motion for extension of tim e is DENIED; Plaintiffs 22 motion for an order for inspection of documents is DENIED; and it is RECOMMENDED that defendants motion to dismiss be granted. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANELL MARTIN,
Plaintiff,

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No. 2:12-cv-0421-JFM (PC)

vs.
DR. PHILLIP H. BECK,

ORDER AND

Defendant.

FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendant Dr. Phillip Beck’s motion to dismiss.

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Plaintiff opposes the motion. On review of the motion and the documents filed in support and

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opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

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RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

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This action arises from events that occurred at Doctor’s Hospital of Manteca

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(“DHM”). Defendant Dr. Phillip Beck is a private doctor at DHM who contracts with the

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California Department of Corrections and Rehabilitation. On February 24, 2010, Dr. Beck

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performed a laser oblation surgery on plaintiff to correct a double-stream urinary flow condition

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caused by an enlarged prostate gland. Plaintiff suffered complications following the surgery,

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including an inability to urinate without a catheter and a permanent condition called retrograde
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ejaculation, a common side-effect of the surgery whereby semen is ejaculated into the bladder

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and urinated out, rendering plaintiff permanently sterile. Plaintiff also alleges that his initial

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double-stream urinary flow problem remains an issue.

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Plaintiff initiated this action on February 17, 2012 claiming that Dr. Beck did not

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inform plaintiff of the potential side-effects of the laser oblation surgery and that, had plaintiff

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been informed of the potential side-effects, he would not have agreed to the surgery. Plaintiff

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seeks damages and declaratory and injunctive relief.

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STANDARDS FOR A MOTION TO DISMISS

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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 Fed. R. Civ. P. 12(b)(6), the court must accept as

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true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and

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construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S.

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232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must

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

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not necessary; the

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

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grounds upon which it rests.’” Erickson, 551 U.S. 89, 127 S. Ct. at 2200 (quoting Bell Atlantic

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at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
DISCUSSION

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A.

Defendant’s Motion to Dismiss
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Eighth Amendment
Defendant seeks dismissal of plaintiff’s complaint for failure to state a claim. He

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asserts that plaintiff’s claim sounds in negligence and/or medical malpractice, and that this is

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insufficient to state an Eighth Amendment claim for deliberate indifference.
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Deliberate indifference to serious medical needs violates the Eighth Amendmen’'s

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97 (1976); Jett

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v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “In the Ninth Circuit, the test for deliberate

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indifference consists of two parts.” Jett, 439 F.3d at 1096. First, the plaintiff must show a

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serious medical need by demonstrating that failure to treat a prisoner’s condition could result in

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further significant injury or the unnecessary and wanton infliction of pain. Jett, 439 F.3d at

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1096; McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other

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grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

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“Second, the plaintiff must show the defendant’s response to the need was deliberately

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indifferent.” Jett, 439 F.3d at 1096. A prison official is “deliberately indifferent” if he or she

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knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing

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to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other

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words, the second prong is satisfied by the plaintiff showing “(a) a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.”

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Jett, 439 F.3d at 1096.

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Prison officials demonstrate “deliberate indifference” when they are aware of the

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patient’s condition but “deny, delay or intentionally interfere with medical treatment.” Jett, 439

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F.3d at 1096. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). Under this standard, the prison official must not only “be aware of

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the facts from which the inference could be drawn that a substantial risk of serious harm exists,”

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but that person ‘must also draw the inference.’” Farmer, 511 U.S. at 837; Toguchi, 390 at 1057.

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“‘If a prison official should have been aware of the risk, but was not, then the official has not

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violated the Eighth Amendment, no matter how severe the risk.’” Toguchi, 390 at 1057 (quoting

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Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “[A]n Eighth

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Amendment claimant need not show that a prison official acted or failed to act believing that

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harm actually would befall an inmate; it is enough that the official acted or failed to act despite

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his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842.

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In applying the deliberate indifference standard, the Ninth Circuit has held that

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before it can be said that a prisoner’s civil rights have been abridged, “the indifference to his

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medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’

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will not support this cause of action.” Broughton v.. Cutter Laboratories, 622 F.2d 458, 460 (9th

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Cir. 1980) (citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been

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negligent in diagnosing or treating a medical condition does not state a valid claim of medical

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mistreatment under the Eighth Amendment. Medical malpractice does not become a

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constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. at

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106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974

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F.2d at 1050. Even gross negligence is insufficient to establish deliberate indifference to serious

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medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A prisoner’s

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mere disagreement with diagnosis or treatment does not support a claim of deliberate

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indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Here, at most, plaintiff alleges facts tending to indicate that defendant failed to

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secure plaintiff’s informed consent before performing a surgery to correct a split-stream urinary

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problem. Because mere negligence does not rise to the level of a “cruel and unusual

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punishment” under the Eighth Amendment, plaintiff's Eighth Amendment claim against

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defendant fails.

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2.

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Fourteenth Amendment
In his opposition, plaintiff points out that defendant fails to address plaintiff’s

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Fourteenth Amendment claim of right to bodily integrity. This claim, however, fails for the

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reasons set forth here.

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The Substantive Due Process Clause protects personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and education.
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Lawrence v. Texas, 539 U.S. 558, 559 (2003); Planned Parenthood of Southeastern Pennsylvania

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v. Casey, 505 U.S. 833, 851 (1992). The Supreme Court has recognized that the individual has a

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right to be “free from unwarranted governmental intrusion into matters so fundamentally

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affecting a person as the decision whether to bear or beget a child.” Casey, 505 U.S. at 851.

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Conduct that shocks the conscience is prohibited by the Due Process Clause of the Fourteenth

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Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998).

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In this case, for defendant’s same conduct, plaintiff alleges violations of his

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substantive due process rights. Because the Eighth Amendment provides an explicit source of

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protection from the type of conduct plaintiff alleges, these claims are preempted by the Eighth

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Amendment and should not be analyzed as a substantive due process claim under the Fourteenth

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Amendment. See Wolff v. Hood, 242 F. Supp. 2d 811, 819 (D. Or. 2002) (finding that plaintiff

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could not state a substantive due process claim for prison officials’ failure to protect him from

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violence by other inmates because the Eighth Amendment provides explicit constitutional

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protection).

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B.

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Miscellaneous Motions
1.

Motion to Enter Default

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On May 24, 2012, plaintiff filed a request to enter default against the defendant

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pursuant to Federal Rule of Civil Procedure 55. Because defendant Beck has appeared in this

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action, entry of default is inappropriate. Accordingly, this request will be denied.

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2.

Motion for Extension of Time
On May 30, 2012, plaintiff filed a motion for extension of time to conduct

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discovery. In light of the recommendation for dismissal made herein and because extraneous

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material cannot be considered on a motion to dismiss, this request will be denied.

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3.

Motion for an Order for Inspection of Documents
On August 3, 2012, plaintiff filed a motion for an order for inspection of

documents. Through this motion, plaintiff seeks access to grievances filed by other inmates
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against Dr. Beck and documents prepared by the institution as related to Dr. Beck’s treatment of

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inmates. Again, in light of the recommendation for dismissal made herein, this request will be

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denied. Furthermore, the court notes that plaintiff’s requests for discovery are premature in light

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of the defendant’s pending motion to dismiss.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. A district judge be assigned to this case;

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2. Plaintiff’s motion to enter default is denied;

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3. Plaintiff’s motion for extension of time is denied;

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4. Plaintiff’s motion for an order for inspection of documents is denied; and

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IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss be
granted.

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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 fourteen

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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 waives 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 18, 2012.

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