Lambesis v. Abiaro et al

Filing 21

ORDER Granting in part and Denying in part Defendant Abiaro's 7 Motion to Dismiss. The Court dismisses Plaintiff's punitive damages claim against Defendant Abiaro. Plaintiff's medical negligence claim against Defendant Abiaro will proceed. Signed by Judge Michael M. Anello on 4/11/2016. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TIMOTHY PETER LAMBESIS,

Case No.: 15cv1359-MMA (NLS)
Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
ABIARO’S MOTION TO DISMISS

v.
ABIARO, et al.,

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[Doc. No. 7]

Defendants.

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Plaintiff Timothy Peter Lambesis is a California state prisoner, proceeding pro se

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in this civil rights action. Plaintiff alleges that Defendant Nurse Abiaro was medically

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negligent when she failed to log his prescription for anastrozole upon his arrival at Vista

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Detention Facility in Vista, California. See Doc. Nos. 1, 18. On January 7, 2016, the

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Court granted Defendant Abiaro’s unopposed motion and dismissed Plaintiff’s claim

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against Abiaro based on Plaintiff’s failure to oppose dismissal. See Doc. No. 10.

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Plaintiff moved for reconsideration of the Court’s order dismissing his claim against

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Defendant Abiaro. See Doc. No. 14. The Court granted Plaintiff’s motion in part,

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vacated its previous dismissal order, and gave Plaintiff leave to oppose Defendant

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Abiaro’s motion. See Doc. No. 15. Plaintiff subsequently filed his response in

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opposition to Defendant Abiaro’s motion to dismiss. See Doc. No. 17. For the reasons
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set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant

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Abiaro’s motion.

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BACKGROUND1

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On May 16, 2014, Plaintiff appeared in state court in Vista, California, for a

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sentencing hearing. Subsequent to the hearing, bailiffs escorted Plaintiff to Vista

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Detention Facility. Plaintiff carried with him on his person a prescription from his

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private physician for anastrozole, a medication prescribed to combat the side effects of

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withdrawal from anabolic steroids. Plaintiff had been self-administering large doses of

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anabolic steroids long term and he was supposed to begin the once-daily anastrozole

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regimen immediately.

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Upon his arrival at Vista Detention Facility, Defendant Abiaro medically cleared

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Plaintiff for admission to the facility. According to Plaintiff, he handed Abiaro the

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anastrozole prescription and she advised him that the facility did not customarily stock

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anastrozole. Abiaro told Plaintiff that he would have to wait for a facility physician to

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prescribe the medication. Plaintiff informed Defendant Abiaro that he needed the

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medication immediately, and Abiaro advised him that he would be scheduled to see a

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physician as soon as possible.

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Plaintiff alleges that Defendant Abiaro failed to log his anastrozole prescription

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into his medical record. Plaintiff claims that this negligent act resulted in a delay in

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receiving the medication, and in the interim, a denial of necessary medical treatment.

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Plaintiff states that he was not seen by a physician until his transfer to a different facility

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on May 25, 2014. Plaintiff alleges that as a result of not receiving his medication for that

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ten day period, he experienced “exponential terror” as he “contemplated the very

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potentials [sic] of my suffering male breast development.” Complaint ¶ 8. Plaintiff avers

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that he now suffers from gynecomastia due to the hormonal imbalance caused by the

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This description of events is taken from Plaintiff’s complaint and is not to be construed as findings of
fact by the Court.
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failure to receive his prescribed medication until July 17, 2014.

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Defendant Abiaro moves to dismiss Plaintiff’s medical negligence claim, as well
as his claim against her for punitive damages.

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DISCUSSION
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Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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Plaintiffs must plead “enough facts to state a claim to relief that is plausible on its face.”

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Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The

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plausibility standard thus demands more than a formulaic recitation of the elements of a

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cause of action, or naked assertions devoid of further factual enhancement. Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain allegations of

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underlying facts sufficient to give fair notice and to enable the opposing party to defend

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itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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In reviewing a motion to dismiss under Rule 12(b)(6), courts must accept as true

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all material allegations in the complaint, as well as reasonable inferences to be drawn

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from them, and must construe the complaint in the light most favorable to the plaintiff.

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Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), citing Karam v. City

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of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003). The court need not take legal

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conclusions as true merely because they are cast in the form of factual allegations.

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Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory

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allegations of law and unwarranted inferences are not sufficient to defeat a motion to

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dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

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Where a plaintiff appears pro se in a civil rights case, the court must construe the

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pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction

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is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261

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(9th Cir. 1992). Furthermore, the court must give a pro se litigant leave to amend his
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complaint “unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)

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(quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987)). Thus,

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before a pro se civil rights complaint may be dismissed, the court must provide the

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plaintiff with a statement of the complaint’s deficiencies. Karim-Panahi, 839 F.2d at

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623-24. But where amendment of a pro se litigant’s complaint would be futile, denial of

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leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

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Analysis
The elements of a medical negligence claim include: “(1) the duty of the

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professional to use such skill, prudence, and diligence as other members of his profession

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commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal

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connection between the negligent conduct and resulting injury; and (4) actual loss or

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damage resulting from the professional’s negligence.” Avivi v. Centro Medico Urgente

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Medical Center, 159 Cal. App. 4th 463, 468, n.2 (2008) (internal quotations and citation

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omitted); Johnson v. Superior Court, 143 Cal. App. 4th 297, 305 (2006).

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Plaintiff alleges that Defendant Abiaro owed a duty to provide him proper medical

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care, and that by failing to log into his medical record a physician’s previously

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administered prescription for anastrozole, Defendant Abiaro breached that duty. Plaintiff

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further alleges that Defendant Abiaro’s negligent act caused a concomitant denial of

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medical treatment, causing him to suffer painful side effects from his consequential

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anabolic steroid withdrawal.

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Defendant Abiaro argues that Plaintiff fails to state a plausible claim for medical

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negligence because “[a]s a jail nurse, Nurse Abiaro is not authorized to prescribe drugs;

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she is only permitted to dispense drugs on the order of a licensed physician.” Reply at 2

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(citing Calif. Bus. & Prof Code §§ 4170 (c), 2725.1(a)). However, Plaintiff does not

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claim that Abiaro should have personally prescribed him anastrozole. Plaintiff alleges

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that he presented Abiaro with a prescription from his private physician, which he further

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alleges she failed to include in his medical record. Abiaro also argues that Plaintiff
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suffered no harm as a result of her alleged mishandling of his prescription, but Plaintiff

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alleges otherwise. According to Plaintiff, ten days elapsed between his encounter with

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Abiaro and his first visit with a physician, during which time he suffered “exponential

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terror” and had begun experiencing withdrawal from anabolic steroids.

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While Plaintiff’s allegations fall far short of stating a constitutional violation, he

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need not do so in order to pursue a supplemental state law negligence claim against

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Defendant Abiaro. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir.1998) (no constitutional

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claim for alleged delay in administering pain medication, because the claim did not

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amount to more than negligence). Construing Plaintiff’s pleadings liberally, as the Court

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must, Plaintiff has stated a plausible claim for medical negligence against Defendant

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Abiaro.

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Defendant Abiaro also moves to dismiss Plaintiff’s punitive damages claim against

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her. Abiaro cites California Code of Civil Procedure Section 425.13 in support of

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dismissal, but district courts in this circuit have concluded that this provision is a state

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procedural rule that does not apply to actions brought in federal court. Estate of Prasad

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ex rel. Prasad v. Cnty. of Sutter, 958 F. Supp. 2d 1101, 1121 (E.D. Cal. 2013) (“[T]he

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plain meaning of Rule 8(a)(3) conflicts with Cal. Civ. Proc. Code § 425.13, making §

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425.13 inapplicable in federal court.”); Jackson v. E. Bay Hosp., 980 F. Supp. 1341, 1352

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(N.D. Cal. 1997) (“The requirement is essentially a method of managing or directing a

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plaintiff’s pleadings, rather than a determination of substantive rights.”); Burrows v.

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Redbud Cmty. Hosp. Dist., 188 F.R.D. 356, 361 (N.D. Cal. 1997) (“[S]ection 425.13 is a

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procedural rule for managing and directing pleadings: it does not create substantive limits

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on the damages a plaintiff may seek.”). However, Plaintiff’s punitive damages claim is

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subject to dismissal based on the other grounds raised by Defendant Abiaro, including

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Plaintiff’s failure to allege the necessary intent. The Court also notes that Plaintiff did

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not respond to this aspect of Defendant Abiaro’s motion to dismiss.

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CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART

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Defendant Abiaro’s motion to dismiss. The Court dismisses Plaintiff’s punitive damages

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claim against Defendant Abiaro. Plaintiff’s medical negligence claim against Defendant

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Abiaro will proceed.

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IT IS SO ORDERED.
DATE: April 11, 2016

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HON. MICHAEL M. ANELLO
United States District Judge

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