Wallace v. Dr. Do et al

Filing 7

ORDER (1) Dismissing Amended Complaint And (2) Denying Motion For Extension Of Time To Amend As Moot (Re Dkt # 5 ): The Court grants Plaintiff 45-days leave from the date of this Order in which to file a Second Amended Complaint. Should Plaintiff fail to file a Second Amended Complaint within the time provided, the Court will enter a final Order of dismissal. Signed by Judge William Q. Hayes on 1/13/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TYRONE WALLACE,
CDCR #P-48941,

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Civil No.
Plaintiff,

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vs.

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Dr. DO;
Dr. CHAU;
Ms. ABARTO,

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ORDER:
1) DISMISSING AMENDED
COMPLAINT FOR FAILING
TO STATE A CLAIM
PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
AND 28 U.S.C. § 1915A(b)(1)
AND

Defendants.

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15-cv-1141 WQH (RBB)

2) DENYING MOTION FOR
EXTENSION OF TIME TO
AMEND AS MOOT
[ECF No. 5]

Tyrone Wallace (“Plaintiff”), a state prisoner incarcerated at Richard J. Donovan

22 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this case
23 pursuant to the Civil Rights Act, 42 U.S.C. § 1983.
24 I.

Procedural History

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

26 (“IFP”) pursuant to 28 U.S.C. § 1915(a), but simultaneously dismissed his Complaint sua
27 sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) for failing to state a claim
28 upon which relief could be granted. See July 22, 2015 Order (ECF No. 3). The Court
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1 provided Plaintiff with notice of his Complaint’s pleading deficiencies and granted him
2 45 days leave in which to amend. Id. at 5-10.
3

On August 18, 2015, Plaintiff filed a Motion seeking an extension of time in which

4 to file his Amended Complaint (ECF No. 5). Just ten days later, however, on August 28,
5 2015, Plaintiff timely filed his Amended Complaint (ECF No. 6). Therefore, the Court
6 DENIES his Motion for extension of time as moot.
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However, because Plaintiff remains a prisoner and is proceeding IFP, his Amended

8 Complaint also requires a pre-Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and
9 § 1915A(b). “The purpose of § 1915A is ‘to ensure that the targets of frivolous or
10 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
11 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d
12 680, 681 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to
13 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as
14 the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”
15 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680
16 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates
17 the familiar standard applied in the context of failure to state a claim under Federal Rule
18 of Civil Procedure 12(b)(6)”).
19 II.

Plaintiff’s Allegations

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In his original Complaint, Plaintiff claimed two RJD Doctors and a dietician

21 provided inadequate medical treatment for his chronic kidney condition by failing to
22 provide him with an unspecified medication and to order that he be served a special low23 protein, low-salt diet. See Compl. (ECF No. 1) at 3-5. He sought $5million in general and
24 punitive damages. Id.
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The Court dismissed Plaintiff’s Complaint sua sponte pursuant to 28 U.S.C.

26 §§ 1915(e)(2) and 1915A(b). See July 22, 2015 Order (ECF No. 3). Specifically, the
27 Court found that while Plaintiff listed RJD doctors Do and Chau, and RJD dietician
28 Abarto as Defendants in the caption of his Complaint, he failed to include any “further
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15cv1141

1 factual enhancement” to describe how, or to what extent, any of them individually caused
2 a violation of his constitutional rights. Id. at 4-5 (citing Ashcroft v. Iqbal, 556 U.S. 622,
3 678 (2009) (noting that FED. R. CIV. P. 8 “demands more than an unadorned, the4 defendant-unlawfully-harmed-me accusation,” and that “[t]o survive a motion to dismiss,
5 a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for
6 relief that is plausible on its face.’”) (citation omitted); Leer v. Murphy, 844 F.2d 628,
7 633 (9th Cir. 1988) (“The inquiry into causation must be individualized and focus on the
8 duties and responsibilities of each individual defendant whose acts or omissions are
9 alleged to have caused a constitutional deprivation.”). The Court further found that
10 “[e]ven if Plaintiff had alleged facts sufficient to connect Dr. Do, Dr. Chau, or Registered
11 Dietitian Abarto with any suffered injury, he . . . still failed to state a plausible Eighth
12 Amendment claim against any of them,” because his Complaint did not allege facts
13 sufficient to show the “deliberate indifference” required to support a plausible claim for
14 relief. See July 22, 2015 Order at 6-9 (citing Estelle v. Gamble, 429 U.S. 97, 103, 104
15 (1976)).
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In his Amended Complaint (ECF No. 6), Plaintiff again seeks damages against Do,

17 Chau, and Abarto, continuing to claim their care was inadequate under the Eighth
18 Amendment. (Id. at 3-5.). This time, Plaintiff alleges it was Dr. Chau, his primary care
19 doctor, who first diagnosed him with “stage 2” chronic kidney disease on December 24,
20 2014, and Chau who later referred him to a “nephrologist for consultation to see if there
21 [wa]s anything else that could be done . . . to slow the progression of [his] chronic renal
22 insufficiency.” Id. at 3. Plaintiff further contends that when he asked Chau to prescribe
23 medication, Chau told him “there is no medication that can cure it.” Id.
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Plaintiff next contends that when Dr. Do, a “RJD nephrologist and kidney

25 specialist,” id. at 2, examined him in February 2015, his condition was still “stage 2,” but
26 was re-assessed as “stage 3” on March 6, 2015. Id. at 4. Plaintiff admits Dr. Do
27 “recommended” a low protein and low salt diet, but “would not prescribe . . .
28 medication,” telling him “once your kidneys go bad that can’t be cured.” Id. at 4.
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Finally, Plaintiff asserts that when he was referred to consult with Registered

2 Dietician Abarto on March 20, 2015, based on Do’s recommendation, Abarto counseled
3 him to “eat fish and chicken and vegetables,” and to limit his beef intake, but refused to
4 place him on a low-protein, low-salt diet because his “creatinine level had to be above
5 2.0” before a special diet was required. Id. at 5.
6 III.

Screening of Plaintiff’s Amended Complaint

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A.

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

Standard of Review

9 (“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like
10 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for,
11 or adjudicated delinquent for, violations of criminal law or the terms or conditions of
12 parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon
13 as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the
14 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are
15 frivolous, malicious, fail to state a claim, or which seek damages from defendants who
16 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d
17 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d
18 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
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Every complaint must contain “a short and plain statement of the claim showing

20 that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations
21 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported
22 by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678 (citing Bell
23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded
24 factual allegations, a court should assume their veracity, and then determine whether they
25 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a
26 complaint states a plausible claim for relief [is] . . . a context-specific task that requires
27 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere
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1 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
2 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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While a plaintiff’s factual allegations are taken as true, courts “are not required to

4 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th
5 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an
6 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the
7 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,
8 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
9 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially
10 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.
11 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation
12 in civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.
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B.

Application to Amended Complaint

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

15 (1) that a right secured by the Constitution or laws of the United States was violated; and
16 (2) that the alleged violation was committed by a person acting under color of state law.”
17 Campbell v. Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011)
18 (citing Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987)).
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While Plaintiff’s Amended Complaint now alleges some facts to explain what roles

20 Drs. Do, Chau, and Dietician Abarto individually played in either treating his disease or
21 otherwise providing him medical care, these facts nevertheless fail to support any Eighth
22 Amendment violations. See Crater v. Galaza, 508 F.3d 1261, 1269 (9th Cir. 2007) (“In
23 § 1983 cases, it is the constitutional right itself that forms the basis of the claim.”); Iqbal,
24 662 U.S. at 676 (“[A] plaintiff must pleas that each Government-official defendant,
25 though the official’s own individual actions, has violated the Constitution.”) (emphasis
26 added).
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In its July 22, 2015 Order, the Court clearly notified Plaintiff of the legal standards

2 for alleging an inadequate medical care claim under the Eighth Amendment, and found
3 his original Complaint failed to contain enough “factual content” that might plausibly
4 show that any Defendant acted with deliberate indifference to his serious medical needs.
5 See ECF No. 3 at 7-9 (citing Gamble, 429 U.S. at 106).
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The same is true now. Plaintiff continues to claim he suffers from chronic kidney

7 disease, which the Court finds an objectively and sufficiently serious medical need. See
8 Amend. Compl. at 3-5; see also Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012)
9 (finding prisoner with “numerous medical conditions, including chronic kidney disease”
10 had “sufficiently facts to show that he had a serious medical need.”). However, neither
11 his Amended Complaint, nor the medical exhibits he has attached as part of his pleading
12 documenting his kidney and dietary care at RJD, see FED. R. CIV. P. 10(c) (“A copy of
13 a written instrument that is an exhibit to a pleading is a part of the pleading for all
14 purposes.”), provide any further “factual content” to explain how Defendants Do, Chau,
15 or Abarto were deliberately indifferent to his plight, i.e., that they “kn[ew] of or
16 disregard[ed] an excessive risk to [Plaintiff’s] health or safety.” Iqbal, 556 U.S. at 678;
17 Farmer v. Brennan, 511 U.S. 825, 834 (1994).
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Instead, Plaintiff’s Amended Complaint alleges only that Dr. Chau, his primary

19 care physician, evaluated him, and referred him to a nephrologist, Dr. Do. See Amend.
20 Compl. at 3. Dr. Do is also alleged to have evaluated Plaintiff, to have recommended he
21 limit his protein and salt intake, and to have referred him to a dietician, Defendant
22 Abarto. Id. at 4. Plaintiff further contends only that his doctors failed to prescribe him
23 medication, indicating that “no medication c[ould] cure [him],” id. at 3, 4, and that the
24 dietician refused to place him on a renal diet because his blood test results revealed one
25 was not yet medically indicated. Id. at 5; see also Amend. Compl. at 82-83, Ex. 8 (April
26 23, 2015, Director’s Level Decision, RJD HC 15052678).
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While Plaintiff describes his treatment as “inadequate” because Defendants failed

28 to prescribe either the medication or diet he believed was appropriate, see Compl. at 3-5,
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1 his Amended Complaint, and the exhibits he now attaches, still lack the “further factual
2 enhancement” which demonstrates any Defendant’s “purposeful act or failure to respond
3 to [his] pain or possible medical need,” or any “harm caused by [this] indifference.”
4 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557); Wilhelm v. Rotman, 680 F.3d
5 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096).
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As the Court cautioned Plaintiff in its July 22, 2015 Order, “[a] difference of

7 opinion

between

a

physician

and

the

prisoner–or

between

medical

8 professionals–concerning what medical care is appropriate does not amount to deliberate
9 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012); Wilhelm, 680 F.3d
10 at 1122-23. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391
11 F.3d 1051, 1060 (9th Cir. 2004). Plaintiff’s Amended Complaint fails to meet this
12 standard because it lacks facts to “show that the course of treatment the doctors chose was
13 medically unacceptable under the circumstances and that the defendants chose this course
14 in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988
15 (citation and internal quotations omitted).
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Accordingly, Plaintiff’s Amended Complaint, like his original pleading, must be

17 dismissed in its entirety for failing to state a claim upon which § 1983 relief can be
18 granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Lopez, 203 F.3d
19 at 1126-27; Rhodes, 621 F.3d at 1004. While Plaintiff has already been provided an
20 opportunity to amend his claims, the Court will grant him another opportunity to amend.
21 See Lucas v. Dept. of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
22 IV.

Conclusion and Order

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For the reasons set forth above, the Court:

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(1)

DENIES Plaintiff’s Motion for Extension of Time to Amend (ECF No. 5)

25 as moot;
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(2)

DISMISSES Plaintiff’s Amended Complaint (ECF No. 6) for failing to state

2 a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
3 28 U.S.C. § 1915A(b)(1); and
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(3)

GRANTS Plaintiff 45-days leave from the date of this Order in which to file

5 a Second Amended Complaint that cures the deficiencies of pleading described above.
6 Plaintiff’s Second Amended Complaint must be complete by itself without reference to
7 his previous complaints. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard
8 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
9 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
10 (noting that claims dismissed with leave to amend which are not re-alleged in an amended
11 pleading may be “considered waived if not repled.”).
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Should Plaintiff fail to file a Second Amended Complaint within the time provided,

13 the Court will enter a final Order of dismissal of this civil action for failure to state a
14 claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and for failure to
15 prosecute in compliance with a Court Order requiring amendment. See Ferdik v. Bonzelet,
16 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to prosecute permitted if
17 plaintiff fails to respond to a court’s order requiring amendment of complaint); Lira v.
18 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
19 the opportunity to fix his complaint, a district court may convert the dismissal of the
20 complaint into dismissal of the entire action.”); Edwards v. Marin Park, 356 F.3d 1058,
21 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to the court’s
22 ultimatum–either by amending the complaint or by indicating to the court that it will not
23 do so–is properly met with the sanction of a Rule 41(b) dismissal.”).
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IT IS SO ORDERED.

25 DATED: January 13, 2016
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WILLIAM Q. HAYES
United States District Judge

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