Rankins v. Liu et al

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/30/17 RECOMMENDING that Dr. Liu's motion to dismiss 41 be denied. MOTION to DISMISS 41 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NORMAN RANKINS,

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Plaintiff,

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No. 2:15-cv-01164 KJM DB P

v.

FINDINGS AND RECOMMENDATIONS

ALEXANDER LIU,

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Defendant.

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Plaintiff, Norman Rankins, is a state prisoner proceeding pro se and in forma pauperis in

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an action brought under 42 U.S.C. § 1983. The action proceeds on plaintiff’s third amended

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complaint, filed July 10, 2017. (ECF No. 40.) Plaintiff asserts a claim under the Eighth

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Amendment for deliberate indifference to medical needs. Plaintiff alleges that defendant

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Alexander Liu, M.D., inadequately and tardily treated various urological conditions, causing him

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to suffer a hernia and permanent incontinence.
Before the court is Dr. Liu’s motion to dismiss, arguing plaintiff failed to allege facts

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sufficient to state a cognizable Eighth Amendment claim, plaintiff failed to allege facts showing

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Dr. Liu acted under color of state law, and plaintiff’s request for punitive damages should be

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stricken. (ECF No. 41.) For the foregoing reasons, this court recommends Dr. Liu’s motion to

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dismiss be denied.

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BACKGROUND

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I.

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Procedural Background
Plaintiff is a state prison inmate currently incarcerated at Richard J. Donovan Correctional

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facility. (ECF No. 32.) At all relevant times, plaintiff was an inmate at California Medical

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Facility. Plaintiff initially filed this action pursuant to 42 U.S.C. § 1983 on May 29, 2015. (ECF

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No. 1.) The initial complaint was dismissed during the screening process and plaintiff was given

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leave to amend. (ECF No. 11.) Plaintiff’s first amended complaint (ECF No. 16) presented a

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cognizable claim and the judge assigned to the case at that time ordered service for Dr. Liu. (ECF

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No. 17.) On December 20, 2016, Dr. Liu filed a motion to dismiss (ECF No. 28) arguing plaintiff

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failed to state a cognizable Eighth Amendment claim. Plaintiff then filed a motion to amend

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(ECF No. 35). The court granted plaintiff’s motion to amend and denied Dr. Liu’s motion to

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dismiss as moot. (ECF No. 39.) Plaintiff filed a third amended complaint (TAC) on July 10,

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2017. (ECF No. 40.) Dr. Liu filed a motion to dismiss. (ECF No. 41.) Plaintiff filed an

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opposition (ECF No. 42) and Dr. Liu replied (ECF No. 43).

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II.

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Factual Allegations
In his TAC, plaintiff alleged at all relevant times he was incarcerated in the California

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Department of Corrections and Rehabilitation (CDCR) and CDCR was required to provide him

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with “essential medical care.” (ECF No. 39 at 7.) CDCR sent plaintiff to have a transurethral

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resection of the prostate (“TURP”) procedure performed by Dr. Liu on March 14, 2014. (ECF

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No. 39 at 7.) Plaintiff had a follow-up visit with Dr. Liu on March 20, 2014. (Id.) Plaintiff

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alleged he informed Dr. Liu he was in excruciating pain and could only urinate if straining to do

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so. (Id.) Plaintiff claimed Dr. Liu told him he was too busy to examine him. (Id.) Plaintiff

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stated he repeated his symptoms and begged Dr. Liu to examine him. (Id.) However, plaintiff

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claimed Dr. Liu stated he would see plaintiff again in two weeks and if plaintiff was still

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symptomatic he would examine him at that time. (Id.)

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On April 7, 2014, plaintiff had a second follow-up appointment with Dr. Liu. (Id. at 8.)

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Plaintiff claimed after he informed Dr. Liu his symptoms were worse, Dr. Liu performed a

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flexible cystoscopy and found debris from the TURP procedure was blocking plaintiff’s urethral

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channel causing plaintiff’s pain and difficult urination. (Id.)

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On April 11, 2014, plaintiff was taken to the emergency room and required surgery to

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treat an umbilical hernia. (Id.) Plaintiff alleged he suffered the hernia because of Dr. Liu’s delay

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in treating his symptoms following the TURP procedure. (Id.)

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On May 9, 2014, plaintiff had a second TURP procedure performed by Dr. Liu. (Id. at 9.)

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Plaintiff saw Dr. Liu again on May 22, 2014 and informed Dr. Liu he no longer had control of his

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bladder. (Id.) Dr. Liu told plaintiff his complete incontinence was permanent. (Id.) Plaintiff

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alleged Dr. Liu demonstrated callous indifference when he delayed examining plaintiff on March

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20, 2014, causing him to suffer unnecessary pain, develop a hernia, and become permanently

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incontinent. ( Id.)

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STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for

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“failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. The court must accept as true the allegations of the complaint,

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Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading

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in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se

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complaint must contain more than “naked assertion[s],” “labels and conclusions,” or “a formulaic

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recitation of the elements of a cause of action, supported by mere conclusory statements.” Iqbal,

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556 U.S. at 678.

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

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

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entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v.

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Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings are held to a less stringent standard than
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those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium).

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The court must give a pro se litigant leave to amend his complaint “unless it determines

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that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith,

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203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.

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1995)). However, the court’s liberal interpretation of a pro se complaint may not supply essential

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elements of the claim that were not pled. Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d

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266, 268 (9th Cir. 1982). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court

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“may ‘generally consider only allegations contained in the pleadings, exhibits attached to the

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complaint, and matters properly subject to judicial notice.’” Outdoor Media Grp., Inc. v. City of

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Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citing Swartz v. KPMG LLP, 476 F.3d 756, 763

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(9th Cir. 2007)).

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ANALYSIS
I.

Eighth Amendment—Deliberate Indifference
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

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Const. amend. VIII. The “unnecessary and wanton infliction of pain” constitutes cruel and

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unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S.

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312, 319 (1986). “Deliberate indifference to serious medical needs of prisoners constitutes the

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unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v.

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Gamble, 429 U.S. 97, 104 (1976) (internal quotations and citations omitted).

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A determination of “deliberate indifference” involves an examination of two elements: the

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seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need.

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). First, a plaintiff must show a serious

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

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significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (citing McGuckin, 974 F.2d at 1059). Second, a plaintiff must show the

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defendant’s response to the need was deliberately indifferent. Id. This can be established by

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showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need
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and (b) harm caused by the indifference. Id.

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Inadvertent failure to provide adequate care or negligence in diagnosing or treating a

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medical condition is not sufficient to sustain an Eighth Amendment claim. Estelle, 429 U.S. at

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105. A difference of medical opinion does not amount to deliberate indifference. Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989) (citing Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir.

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1981)). A prisoner must allege acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs. Estelle, 429 U.S. at 106.

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Plaintiff alleged he informed Dr. Liu of his excruciating pain and difficulty urinating at his

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March 20, 2014 appointment. Dr. Liu allegedly refused to examine plaintiff that day because he

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was too busy and told plaintiff he would conduct an exam at his next appointment in two weeks.

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However, Dr. Liu claims plaintiff’s Exhibit A (ECF No. 40 at 11) shows he examined plaintiff on

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March 20, 2014. Plaintiff claimed he was harmed by Dr. Liu’s refusal to examine him because he

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remained in severe pain, developed a hernia, and became permanently incontinent. Thus, he has

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alleged he informed Dr. Liu of a serious medical need, Dr. Liu failed to respond to that need, and

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plaintiff was harmed by his refusal.

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Plaintiff has pled sufficient facts to state a claim for deliberate indifference in violation of

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the Eighth Amendment. While Dr. Liu may ultimately prevail on his argument that he acted

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reasonably under the circumstances, at this stage the issue is not whether plaintiff will ultimately

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prevail, but whether he is entitled to offer evidence to support this claim. Usher v. City of Los

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Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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Further, there is a factual dispute regarding whether Dr. Liu examined plaintiff on March 20,

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2014 that cannot be resolved on a motion to dismiss.

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II.

State Action
“To establish § 1983 liability, a plaintiff must show both (1) [the] deprivation of a right

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secured by the Constitution and laws of the United States, and (2) that the deprivation was

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committed by a person acting under color of state law.” Chudacoff v. Univ. Med. Ctr. Of S.

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Nev., 649 F.3d 1143, 1149 (9th Cir. 2011) (citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.

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2003); Am. Mfrs. Mut. Ins Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). “The ‘under color of
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state law’ requirement under § 1983 is the same as the Fourteenth Amendment’s ‘state action’

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requirement.” Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982)).

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The Supreme Court has held that a physician who is under contract with a state to provide

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medical care to inmates is a state actor for § 1983 purposes. West v. Atkins, 487 U.S. 42, 55-57

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(1988). Likewise, the Ninth Circuit has held that allegations that medical providers “are under

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contract with the state . . . to provide medical services to indigent citizens” support an inference

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that they are state actors within the meaning of § 1983. Lopez v. Dep’t of Health Servs., 939 F.2d

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881, 883 (9th Cir. 1991) (per curium); see also Estate of Prasad ex rel. Prasad v. County of Sutter,

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958 F. Supp. 2d 1101, 1122 (E.D. Cal. 2013) (citations omitted) (“A hospital is a state actor for

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purposes of § 1983 when it contracts with the state to provide adequate medical care to the state’s

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incarcerated citizens.”); Ayala v. Andreasen, No. 2:04-cv-0903 RRB CMK P, 2007 WL 1395093

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(E.D. Cal. May 10, 2007) (A private physician employed by a hospital under contract with CDCR

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who provided medical services to an inmate acted under color of state law.).
Plaintiff’s TAC alleged Dr. Liu acted under color of state law because plaintiff was under

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the care of CDCR who sent him to be treated by Dr. Liu. (ECF No. 40 at 2, 7.) It may be

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inferred CDCR sent plaintiff to receive treatment at a facility CDCR contracted with to provide

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medical services to inmates, and as an employee of a facility under contract with CDCR to

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provide medical services to inmates, Dr. Liu acted under color of state law when he treated

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plaintiff. At this stage, plaintiff has pled facts sufficient to support an inference that Dr. Liu acted

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under color of state law.

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III.

Punitive Damages
“[P]unitive damages may be recovered in appropriate circumstances under § 1983.”

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Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Such as “when the defendant’s conduct is

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shown to be motivated by evil motive or intent, or when it involves reckless or callous

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indifference” to the plaintiff’s rights. Smith v. Wade, 461 U.S. 30, 56 (1983).

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Here, construed liberally, plaintiff’s allegations plausibly support the inference that Dr.

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Liu acted with reckless indifference toward plaintiff’s medical needs. Accordingly, the court

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declines to strike plaintiff’s request for punitive damages.
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CONCLUSION
Accordingly IT IS HEREBY RECOMMENDED that Dr. Liu’s motion to dismiss (ECF
No. 41) be denied.
These findings and recommendations will be 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. The 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 seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 30, 2017

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DLB1/orders/prisoner-civil rights/Rank1164.mtd

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