Moore v. Corizon Health Services et al

Filing 9

ORDER Dismissing Case, ***Civil Case Terminated. Signed by Magistrate Judge Donna M. Ryu on 1/30/2017. (dmrlc1, COURT STAFF) (Filed on 1/30/2017) (Additional attachment(s) added on 1/30/2017: # 1 Certificate/Proof of Service) (igS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICKEY W. MOORE,

Case No. 16-cv-04195-DMR

Plaintiff,
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v.

ORDER DISMISSING CASE

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CORIZON HEALTH SERVICES, et al.,
Defendants.

United States District Court
Northern District of California

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Plaintiff Rickey W. Moore filed suit in this court along with an application to proceed in

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forma pauperis (“IFP”). [Docket Nos. 1, 2.] The court granted Plaintiff’s IFP application and

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dismissed the complaint with leave to amend to remedy the deficiencies noted in the order.

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[Docket No. 5.] Plaintiff timely filed a first amended complaint. [Docket No. 6 (“FAC”).] For

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the following reasons, the court dismisses the first amended complaint.

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I.

DISCUSSION

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Plaintiff alleges the following facts in the FAC. Plaintiff was detained at Santa Rita

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Correctional Facility from April 14, 2015 through October 11, 2015. FAC 1. He alleges that while

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he was incarcerated, he received “improper medical treatment”; specifically, he alleges that he was

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given “wrong medications and dosages” for his diabetes and hypertension. Id. Plaintiff alleges

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that he nearly died, and that he suffered side effects including swelling of his lower extremities

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during his incarceration and after he was released. Id. Plaintiff sues Defendants Corizon Health

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Services and Santa Rita Jail/Alameda County.

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Liberally construing the FAC, Plaintiff alleges four new claims for relief: 1) 42 U.S.C. §

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1983 claim for violation of the Eighth Amendment’s proscription against cruel and unusual

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punishment, based on deliberate indifference to Plaintiff’s serious medical need; 2) violation of

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unspecified provisions of the Health Insurance Portability and Accountability Act (“HIPAA”); 3)

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42 U.S.C. § 1983 claim for violation of the Fourteenth Amendment; and 4) violation of

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California’s Unruh Civil Rights Act, California Civil Code section 51.1 The court will examine

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each claim in turn.

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A.

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In its order dismissing the complaint with leave to amend, the court noted that “Plaintiff

Section 1983 Claim for Violation of the Eighth Amendment

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may be able to allege a violation for deliberate indifference to a serious medical need,” and

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described the requirements for alleging such a claim. [Docket No. 5 at 4-5.] The court also noted

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that the complaint did not clearly indicate whether Plaintiff was incarcerated as a pretrial detainee

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or was serving time as a convicted inmate, explaining that “[p]retrial detainees and convicted
prisoners look to different constitutional provisions for their respective rights to basic needs such

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United States District Court
Northern District of California

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as medical care.” Id. at 4 n.2 (explaining that the Eighth Amendment governs such claims brought

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by convicted persons while the Fourteenth Amendment applies to claims brought by pretrial

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detainees). Plaintiff has not remedied this deficiency in the FAC; accordingly, the court will

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analyze Plaintiff’s constitutional claims based on his medical needs under both applicable

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constitutional provisions.
As discussed in the court’s previous order, to prove that the response of prison officials to

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an inmate’s medical needs was constitutionally deficient under the Eighth Amendment, the inmate

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must establish (1) a serious medical need and (2) deliberate indifference to that need by jail

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officials. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other

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

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Plaintiff pleads four separate claims for violation of 42 U.S.C. § 1983, “Eighth Amendment
(Cruel and Unusual Punishment),” “429 U.S. 97 (Deliberate Indifference Standard),” and
“Fourteenth Amendment (Equal Protections of the Laws).” Am. Compl. 3-5. However, Plaintiff
“has no cause of action directly under the United States Constitution.” Azul-Pacifico, Inc. v. City
of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992). Instead, “a litigant complaining of a violation
of a constitutional right must utilize 42 U.S.C. § 1983.” Id. Therefore, the court construes
Plaintiff’s Eighth Amendment and Fourteenth Amendment claims as two separate claims under 42
U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendment. As to Plaintiff’s “429
U.S. 97 (Deliberate Indifference Standard)” claim, it appears that Plaintiff refers to Estelle v.
Gamble, 429 U.S. 97, 104 (1976), in which the Supreme Court held that deliberate indifference to
serious medical needs violates the Eighth Amendment’s proscription against cruel and unusual
punishment. This claim is duplicative of Plaintiff’s Section 1983 claim for violation of the Eighth
Amendment.
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‘serious’ medical need exists if the 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.’” Id. (citing Estelle v.

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Gamble, 429 U.S. 97, 104 (1976)). A prison official is deliberately indifferent if he knows that a

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

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reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994).

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As with the original complaint, Plaintiff’s first amended complaint fails to sufficiently state

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a claim for deliberate indifference to a serious medical need. Plaintiff has not alleged any new

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facts from which an inference could be drawn regarding a substantial risk of harm or that officers

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at the jail were aware of the fact that they were providing the wrong medications and wrong
dosages for Plaintiff’s diabetes and hypertension. At most, Plaintiff’s claim—that Defendants

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United States District Court
Northern District of California

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gave him improper medications and dosages—amounts to negligence. It is well-established

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federal law that a claim of inadvertent failure to provide adequate medical care or mere negligence

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is insufficient to constitute an Eighth Amendment violation. Estelle, 429 U.S. at 105–07; Toguchi

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v. Chung, 391 F.3d 1051, 1060-61 (9th Cir. 2004) (a claim of negligence or medical malpractice

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insufficient to make out Eighth Amendment violation); see, e.g., Frost v. Agnos, 152 F.3d 1124,

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1130 (9th Cir. 1998) (finding no merit in claims stemming from alleged delays in administering

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pain medication, treating broken nose, and providing replacement crutch, because claims did not

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amount to more than negligence).

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Plaintiff was previously granted leave to allege an Eighth Amendment deliberate

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indifference claim, and the court described in detail the requirements for alleging such a claim.

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However, the FAC contains no new facts to support a deliberate indifference claim; Plaintiff

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simply repeated the facts that were in the original complaint. Accordingly, since it appears that

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Plaintiff is unable to allege facts to adequately plead a deliberate indifference claim, the claim is

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dismissed without leave to amend.

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B.

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Plaintiff’s second claim for relief is violation of unspecified HIPAA provisions. HIPAA

HIPAA Claim

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does not create a private right of action for a patient to sue a health care provider. Webb v. Smart

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Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). Accordingly, Plaintiff’s claim
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against Defendants for a purported HIPAA violation also fails and is dismissed without leave to

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amend.

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C.

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Plaintiff’s third claim for relief is a Section 1983 claim for violation of the Fourteenth

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Amendment. Claims for failure to provide care for serious medical needs, when brought by a

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detainee who has been neither charged nor convicted of a crime, are analyzed under the

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substantive due process clause of the Fourteenth Amendment rather than the Eighth Amendment.

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Lolli v. Cty. of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Fourteenth Amendment

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“imposes, at a minimum, the same duty the Eighth Amendment imposes: persons in custody

Section 1983 Claim for Violation of the Fourteenth Amendment

ha[ve] the established right to not have officials remain deliberately indifferent to their serious

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United States District Court
Northern District of California

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medical needs.” Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (quotation

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omitted). Thus, Eighth Amendment standards are utilized in evaluating the claims of pretrial

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detainees. See Lolli, 351 F.3d at 419.

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As discussed above, Plaintiff has failed to allege facts to support an Eighth Amendment

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deliberate indifference claim. Since “the ‘deliberate indifference’ standard applies to claims that

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correction facility officials failed to address the medical needs of pretrial detainees,” Clouthier v.

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Cty. of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010), Plaintiff’s Fourteenth Amendment

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claim is also insufficiently pleaded. As with the Eighth Amendment claim, Plaintiff has already

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been given the opportunity to amend his complaint to sufficiently allege a deliberate indifference

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claim. Accordingly, his Fourteenth Amendment claim is also dismissed without leave to amend.

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D.

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Plaintiff’s fourth claim is for violation of the Unruh Act. California Civil Code section 51

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Unruh Act

provides, in part, that
[a]ll persons within the jurisdiction of this state are free and equal,
and no matter what their sex, race, color, religion, ancestry, national
origin, disability, medical condition, marital status, or sexual
orientation, are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.
Cal. Civ. Code § 51(b). “To prevail on [a] disability discrimination claim under the Unruh Civil

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Rights Act, [a] plaintiff must establish that (1) he was denied the full and equal accommodations,

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advantages, facilities, privileges, or services in a business establishment; (2) his disability was a

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motivating factor for this denial; (3) defendants denied plaintiff the full and equal

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accommodations, advantages, facilities, privileges, or services; and (4) defendants’ wrongful

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conduct caused plaintiff to suffer injury, damage, loss or harm.” Johnson v. Beahm, No. 2:11–cv–

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0294–MCE–JFM, 2011 WL 5508893, at *4 (E.D. Cal. Nov. 8, 2011) (citing California Civil Jury

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Instructions (BAJI), No. 7.92 (Spring 2009)).

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Plaintiff has failed to state a claim for violation of the Unruh Act as to either Defendant

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Santa Rita Jail/Alameda County or Corizon Health Services. The court notes that it is not clear
whether Santa Rita Jail/Alameda County, a governmental entity, may be held liable under the

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United States District Court
Northern District of California

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statute as a “business establishment.” See, e.g., Anderson v. Cty. of Siskiyou, C 10-01428 SBA,

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2010 WL 3619821, at *6 (N.D. Cal. Sept. 13, 2010) (holding county jail is not a “business

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establishment” subject to the Unruh Act).2 However, even assuming the County can be sued

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under the statute, Plaintiff fails to state a claim for Unruh Act liability against either defendant,

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since the FAC does not allege that Plaintiff was administered improper medications because of a

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disability.

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It is possible that Plaintiff could allege an Unruh Act claim against one or both defendants.

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However, Plaintiff does not have any remaining federal claims in this action. Since all the federal

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claims that served as a basis for jurisdiction have been dismissed, the court declines to exercise

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supplemental jurisdiction over the remaining state law claim. 28 U.S.C. § 1367(c)(3). Plaintiff’s

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state law Unruh Act claim is dismissed without prejudice; Plaintiff may proceed with his Unruh

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Act claim in state court if he so elects. See Reynolds v. Cty. of San Diego, 84 F.3d 1162, 1171 (9th

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Cir. 1996) (dismissal of pendent state claims following dismissal of related federal claims must be

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without prejudice), overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000

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It appears that Plaintiff may be able to maintain an Unruh Act claim against Defendant Corizon
Health Services. In Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1050 (N.D. Cal.
2012), the court held that the defendant, Corizon, which is a private, for-profit entity that functions
as a business within jails, is a “business establishment” within the meaning of the Act.
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(9th Cir. 1997) (en banc).

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II.

For the foregoing reasons, the FAC is dismissed. The clerk shall close the file in this

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Judge D

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United States District Court
Northern District of California

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ERED

______________________________________
Donna M. Ryu
United States nna M. Ryu
o Magistrate Judge

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Dated: January 30, 2017

ORD
T IS SO

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UNIT
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IT IS SO ORDERED.

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matter.

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CONCLUSION

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