Wallace v. Dr. Do et al

Filing 25

ORDER (1) Granting Motion For Leave To Amend (Dkt # 21 ) (2) Denying Motion To Appoint Counsel (Dkt # 23 ) And (3) Dismissing Civil Action: The Court dismisses Plaintiff's SAC and this action sua sponte and in its entirety for failure to state a claim upon which Section 1983 relief can be granted without further leave to amend. The Court certifies that an IFP appeal from this Order would not be taken in good faith. The Clerk of Court is directed to close the file. Signed by Judge William Q. Hayes on 10/24/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

TYRONE WALLACE,
CDCR #P-48941,
vs.

14

16

ORDER:

Plaintiff,

13

15

Case No.: 3:15-cv-1141-WQH-AGS

1) GRANTING MOTION FOR
LEAVE TO AMEND [Doc. No. 21]

Dr. Do,
Defendant.

2) DENYING MOTION TO
APPOINT COUNSEL [Doc. No. 23]

17
AND

18
19

3) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(b)(ii) AND
§ 1915A(b)(1)

20
21
22
23
24

TYRONE WALLACE (“Plaintiff”), a prisoner at Richard J. Donovan Correctional

25

Facility (“RJD”) in San Diego, California, is proceeding pro se in this case pursuant to

26

the Civil Rights Act, 42 U.S.C. § 1983. Currently pending before the Court are Plaintiff’s

27

Second Amended Complaint (“SAC”) (Doc. No. 19), a Motion to Amend his cause of

28

action (Doc. No. 21), and his Motion to Appoint Counsel (Doc. No. 23).
1
3:15-cv-1141-WQH-AGS

1

I.

2

Procedural History
On July 22, 2015, the Court granted Plaintiff leave to proceed in forma pauperis

3

(“IFP”) pursuant to 28 U.S.C. § 1915(a), but simultaneously dismissed his Complaint sua

4

sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim

5

upon which relief could be granted. See July 22, 2015 Order (Doc. No. 3). The Court

6

provided Plaintiff with notice of his Complaint’s pleading deficiencies and granted him

7

45 days leave in which to amend. Id. at 5-10.

8

Plaintiff filed a First Amended Complaint (“FAC”) (Doc. No. 6), but on January

9

13, 2016, the Court found Plaintiff’s FAC still failed to state a plausible claim for relief

10

against any named Defendant and dismissed it sua sponte pursuant to 28 U.S.C.

11

§ 1915(e)(2) and § 1915A (Doc. No. 7). While Plaintiff had already been provided a short

12

and plain description of his pleading deficiencies, the Court granted him one additional

13

opportunity to amend. See Doc. No. 7 at 7-8.

14

After requesting and receiving three separate extensions of time in which to amend

15

(Doc. Nos. 10, 13, 18), Plaintiff eventually filed his SAC (Doc. No. 19). Plaintiff’s SAC

16

no longer names Drs. Chau or RJD Dietician Abarto as Defendants; therefore, his

17

previous claims as to those parties are waived. See Lacey v. Maricopa Cnty., 693 F.3d

18

896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

19

re-alleged in an amended pleading may be “considered waived if not repled.”).

20

In his SAC, Plaintiff repeats his claims that Dr. Do, a nephrologist at Alvarado

21

Hospital, consulted by his RJD physicians to evaluate Plaintiff’s chronic kidney disease,

22

violated his right to adequate medical treatment under the Fourteenth Amendment. (Doc.

23

No. 19 at 2-4.) Specifically, Plaintiff claims Dr. Do violated his rights on February 6,

24

2015, March 6, 2015, September 11, 2015, and again on April 5, 2016, by “not

25

prescribing … treatment” or medication. Id. at 3-4. Plaintiff’s SAC includes no additional

26

factual content; instead he simply refers to exhibits which he has attached in support of

27

his SAC. See id. at 3-4, Ex. 1 at 9-12; Ex. 2 at 13-17; Ex. 3 at 18-22; Ex. 4 at 23-29.

28

///
2
3:15-cv-1141-WQH-AGS

1

II.

Motion to Amend
Plaintiff’s SAC alleges Dr. Do violated his “14th amendment right to adequate

2
3

health care,” (Doc. No. 19 at 3), but after he filed it, he also filed a Motion to Amend the

4

inadequate medical care cause of action in his SAC to arise under the Eighth

5

Amendment, not the Fourteenth. See Doc. No. 21 at 1-2.

6

While the Court would have liberally construed his claims to arise under the Eighth

7

Amendment because Plaintiff is a prisoner and is proceeding pro se status in any event,

8

the Court GRANTS his Motion to Amend (Doc. No. 21) and will analyze Plaintiff’s

9

medical care claims under the Eighth Amendment. See Bernhardt v. Los Angeles County,

10

339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to construe pro se pleadings

11

liberally, including pro se motions as well as complaints.”); see also Christensen v. CIR,

12

786 F.2d 1382, 1384 (9th Cir. 1986) (construing pro se taxpayer’s motion to “place

13

statements in the record” as a motion for leave to amend); Estelle v. Gamble, 429 U.S.

14

97, 104 (1976) (prison officials violate the Eighth Amendment’s prohibition of cruel and

15

unusual punishments if they are “deliberate[ly] indifferen[t] to [a prisoner’s] serious

16

medical needs.”).

17

III.

18

Motion to Appoint Counsel
Plaintiff has also filed a second Motion requesting the appointment of counsel

19

because he claims to suffers from a mental disorder, a learning disability, and has “bad

20

hand writing” which requires him to use “white-out” and is “hard to decipher.” (Doc. No.

21

23 at 3-4.)
The Court finds, however, that Plaintiff’s pleadings have all been sufficiently

22
23

legible, assures him that all documents filed by pro se litigants are “liberally construed,”

24

and notes that his “pro se complaint, however inartfully pleaded,” is held to less stringent

25

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

26

(2007) (internal citations and quotation marks omitted). Moreover, FED. R. CIV. P. 8(e)

27

requires that “[p]leadings …be construed so as to do justice.”

28

///
3
3:15-cv-1141-WQH-AGS

1

However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept.

2

of Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district

3

courts have some limited discretion to “request” that an attorney represent an indigent

4

civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004),

5

this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see

6

also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional

7

circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the

8

merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

9

complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn

10

v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Applying these factors to Plaintiff’s case, the Court DENIES Plaintiff’s Motion to

11
12

Appoint Counsel (Doc. No. 23) because, as discussed below, a liberal construction of

13

both his original and amended pleadings suggests he is capable of articulating the factual

14

basis for his legally straightforward inadequate medical care claims, but has not shown

15

any likelihood of success on the merits. Id. Therefore, neither the interests of justice nor

16

any exceptional circumstances warrant the appointment of counsel in this case. LaMere v.

17

Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

18

IV.

Screening of Second Amended Complaint

19

A.

20

As Plaintiff knows, the Court is obligated by the Prison Litigation Reform Act

Standard of Review

21

(“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like

22

Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced

23

for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of

24

parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon

25

as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the

26

PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are

27

frivolous, malicious, fail to state a claim, or which seek damages from defendants who

28

are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d
4
3:15-cv-1141-WQH-AGS

1

1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

2

1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

3

Every complaint must contain “a short and plain statement of the claim showing

4

that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations

5

are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

6

by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 622, 678

7

(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there

8

are well-pleaded factual allegations, a court should assume their veracity, and then

9

determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

10

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

11

specific task that requires the reviewing court to draw on its judicial experience and

12

common sense.” Id. The “mere possibility of misconduct” falls short of meeting this

13

plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th

14

Cir. 2009).

15

While a plaintiff’s factual allegations are taken as true, courts “are not required to

16

indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

17

Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

18

obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

19

pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

20

627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

21

(9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

22

pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

23

1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

24

civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.
Application to Plaintiff’s Second Amended Complaint

25

B.

26

“To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements:

27

(1) that a right secured by the Constitution or laws of the United States was violated; and

28

(2) that the alleged violation was committed by a person acting under color of state law.”
5
3:15-cv-1141-WQH-AGS

1

Campbell v. Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011)

2

(citing Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987)).

3
4

1.

“Under Color of State Law”

Plaintiff’s SAC describes Dr. Do only as a nephrologist; his exhibits show Dr. Do

5

is a treating physician at Alvarado Hospital, and not a doctor employed at RJD where

6

Plaintiff is incarcerated. See Doc. No. 19 at 2; Exs. 1-3 at 9, 14, 19, 24. Therefore, his

7

SAC fails to allege that Dr. Do acted under color of state law. West v. Atkins, 487 U.S.

8

42, 48 (1988). While private physicians who provide medical services to inmates in

9

custody may act under color of state law for purposes of § 1983, Plaintiff must allege that

10

Dr. Do acted under a contract with the state or RJD to provide him specialized medical

11

care. Id. at 53-54; Lopez v. Dept. of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per

12

curiam) (finding state action where hospital “contract[ed] with the state ... to provide

13

medical services to indigent citizens”); George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F.

14

Supp. 2d 922, 934 (N.D. Cal. 2010) (“A private ... hospital that contracts with a public

15

prison system to provide treatment for inmates performs a public function and acts under

16

color of law for purposes of § 1983.”).

17

He has failed to do so; therefore, Plaintiff’s SAC requires dismissal as to Dr. Do

18

pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and § 1915A(b)(1) for this reason alone. See

19

Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

20
21

2.

Eighth Amendment Medical Care

Even if Plaintiff did allege, or the Court were to assume that Dr. Do acted under

22

color of state law when he performed telemedicine nephrology consultations with

23

Plaintiff on February 6, 2015, March 6, 2015, September 11, 2015, and April 5, 2016

24

(Doc. No. 19 at 1), Plaintiff’s SAC contains no further “factual content” to plausibly

25

show that Dr. Do acted with deliberate indifference to his serious medical needs on any

26

of these occasions. See Estelle, 429 U.S. at 103-05; Peralta v. Dillard, 744 F.3d 1076,

27

1081-82 (9th Cir. 2014). “In order to prevail on an Eighth Amendment claim for

28

inadequate medical care, a plaintiff must show ‘deliberate indifference’ to his ‘serious
6
3:15-cv-1141-WQH-AGS

1

medical needs.’” Estelle, 429 U.S. at 104. A prison official is deliberately indifferent to

2

those needs if he is alleged to “know[] of and disregard[] an excessive risk to inmate

3

health.” Peralta, 744 F.3d at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837

4

(1994)).

5

In both its July 22, 2015, and January 13, 2016 Orders (Doc. Nos. 3, 7), the Court

6

clearly notified Plaintiff of the legal standards for alleging an inadequate medical care

7

claim under the Eighth Amendment, and found both his original Complaint and First

8

Amended Complaint failed to meet those pleading standards. The same is true now.

9

While Plaintiff continues to claim he suffers from chronic kidney disease, which the

10

Court finds an objectively and sufficiently serious medical need, see Doc. No. 19 at 2-4;

11

see also Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (finding prisoner with

12

“numerous medical conditions, including chronic kidney disease” had “sufficiently facts

13

to show that he had a serious medical need.”), neither his SAC, nor the medical exhibits

14

he has attached as part of his pleading documenting his nephrology consults with Dr. Do,

15

see FED. R. CIV. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading

16

is a part of the pleading for all purposes.”), provide any further “factual content” to

17

explain how Dr. Do was deliberately indifferent to his plight, i.e., that he “kn[ew] of or

18

disregard[ed] an excessive risk to [Plaintiff’s] health or safety.” Iqbal, 556 U.S. at 678;

19

Farmer, 511 U.S. at 834.

20

In fact, while Plaintiff’s SAC alleges Dr. Do did “not prescribe [Plaintiff]

21

treatment,” or unspecified medications for his “stage 3 kidney disease,” see Doc. No. 19

22

at 3-4; the exhibits he attaches which document Dr. Do’s “telemedicine custody

23

consultations” on February 6, 2015, March 6, 2015, September 11, 2015, and April 5,

24

2016 (Doc. No. 19, Exs. 1-4 at 8-28), all reveal that Dr. Do assessed Plaintiff on those

25

four occasions, evaluated his lab results, including all blood work, kidney function, and a

26

renal ultrasound, and reviewed his past medical history, current complaints, and

27

Plaintiff’s then-prescribed course of medication for Mirtazapine, Valproic acid,

28

Ziprasidone, Hydroxyzine, Nystatin, Acetaminophen, and Triamcinolone. (Id. at 9-10,
7
3:15-cv-1141-WQH-AGS

1
2

14-15, 19-20, 24-26.)
On all four occasions, Dr. Do diagnosed Plaintiff with “echogenic kidneys” which

3

he attributed to “lithium use in the past,” (Doc. No. 19 at 25-25), counseled him on diet

4

and increased water intake, noted his vital signs were “very stable,” and after evaluating

5

Plaintiff’s progression and medical history at RJD over the course of more than one year,

6

concluded that Plaintiff’s needed only be evaluated by a nephrologist “on a yearly basis,”

7

that he required no dietary restrictions, and that despite his chronic kidney disease, he

8

would “remain stable” for a “long, long time.” (Id. at 10, 15.)

9

While Plaintiff concludes this course of treatment was inadequate (Doc. No. 19 at

10

3-4), both his SAC and the exhibits he has attached lack the “further factual

11

enhancement” which might demonstrate Do’s “purposeful act or failure to respond to

12

[his] pain or possible medical need,” or any “harm caused by [this] indifference.” Iqbal,

13

556 U.S. at 678 (citing Twombly, 550 U.S. at 557); Wilhelm v. Rotman, 680 F.3d 1113,

14

1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)); Nat’l

15

Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043,

16

1049 (9th Cir. 2000) (in determining whether the complaint states a claim for relief, court

17

“may consider facts contained in documents attached to the complaint”).

18

As the Court cautioned Plaintiff in both its July 22, 2015, and January 13, 2016

19

Orders, “Eighth Amendment doctrine makes clear that ‘[a] difference of opinion between

20

a physician and the prisoner–or between medical professionals–concerning what medical

21

care is appropriate does not amount to deliberate indifference.’” Hamby v. Hammond,

22

821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th

23

Cir. 2012), overruled in part on other grounds by Peralta, 744 F.3d at 1083.). “Deliberate

24

indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

25

2004). Plaintiff’s SAC still fails to allege Dr. Do acted with deliberate indifference

26

because it lacks facts to “show that the course of treatment the doctor[] chose was

27

medically unacceptable under the circumstances and that the defendant[] chose this

28

course in conscious disregard of an excessive risk to [his] health.” Hamby, 821 F.3d at
8
3:15-cv-1141-WQH-AGS

1

1092 (citing Snow, 681 F.3d at 988 (citation and internal quotations omitted)).

2

Accordingly, Plaintiff’s SAC, like both his original and First Amended pleadings,

3

must be dismissed in its entirety for failing to state a claim upon which § 1983 relief can

4

be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Lopez, 203

5

F.3d at 1126-27; Rhodes, 621 F.3d at 1004. Moreover, because Plaintiff has already been

6

provided two separate opportunities to amend his medical care claims to no avail, the

7

Court finds granting him further leave to amend would be futile. See Gonzalez v. Planned

8

Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself,

9

justify the denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845

10

(9th Cir. 1995)).

11

IV.

Conclusion and Order

12

Based on the foregoing, the Court:

13

1)

14

No. 21];

15

2)

DENIES Plaintiff’s Motion to Appoint Counsel [Doc. No. 23];

16

3)

DISMISSES Plaintiff’s SAC and this civil action sua sponte and in its

GRANTS Plaintiff’s Motion for Leave to Amend his cause of action [Doc.

17

entirety for failure to state a claim upon which § 1983 relief can be granted without

18

further leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1);

19

4)

CERTIFIES that an IFP appeal from this Order would not be taken in good

20

faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438,

21

445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is

22

permitted to proceed IFP on appeal only if appeal would not be frivolous); and

23

5)

24

IT IS SO ORDERED.

25

DIRECTS the Clerk of Court to close the file.

Dated: October 24, 2016

26
27
28
9
3:15-cv-1141-WQH-AGS