Alvarez v. Ko et al

Filing 39

ORDER Adopting Report and Recommendation [Doc. No. 35 ] and Denying Defendants' Motion to Dismiss [Doc. No. 24 ]. Signed by Judge Cathy Ann Bencivengo on 5/5/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VICENTE ARRAIGA ALVAREZ,

Case No.: 16-CV-1302-CAB-(NLS)

Plaintiff,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 35]
AND DENYING DEFENDANTS’
MOTION TO DISMISS [Doc. No. 24]

DR. S. KO, MD., et al.,

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Defendants.

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Plaintiff Vicente Alvarez, a California prisoner, filed this civil rights complaint

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against Defendants under 42 U.S.C. § 1983. On March 24, 2017, Magistrate Judge Nita L.

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Stormes filed a Report and Recommendation recommending the Court deny the motion to

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dismiss filed by Defendants Dr. S. Ko, M.D., Dr. Connall McCabe, M.D., Dr. A. Sangha,

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C.M.E., and Deputy Director J. Lewis. [Doc. No. 35.]

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PROCEDURAL BACKGROUND

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On May 31, 2016, Plaintiff filed a Complaint alleging that Defendants Ko, McCabe,

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Sangha and Lewis (collectively “Defendants”) were deliberately indifferent to Plaintiff’s

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serious medical need, in violation of the Eight Amendment. [Doc. No. 1 at 1-2.]

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On December 14, 2016, Defendants filed a motion to dismiss the Complaint. [Doc.

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No. 24.] On February 15, 2017, Plaintiff filed his opposition to the motion. [Doc. No. 29.]

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On February 23, 2017, Defendants filed a reply in support of the motion to dismiss. [Doc.

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No. 32.]

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On March 24, 2017, Magistrate Judge Nita L. Stormes filed a Report and

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Recommendation recommending that the motion to dismiss filed by Defendants be denied.

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[Doc. No. 35.] On April 7, 2017, Defendants filed an objection to the Report and

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Recommendation. [Doc. No. 37.] On April 24, 2017, Plaintiff filed a reply to the

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objection. [Doc. No. 38.]

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FACTUAL BACKGROUND
Defendants do not object to the factual background provided by Magistrate Judge
Stormes [Doc. No. 34 at 2-6] and, therefore, it is incorporated by reference.
REVIEW OF REPORT AND RECOMMENDATION

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The duties of the district court in connection with a report and recommendation of a

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magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b).

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The district court need not review de novo those portions of a report and recommendation

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to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.

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2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

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A. Deputy Director Lewis

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Magistrate Judge Stormes found that Plaintiff sufficiently stated a claim against

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Deputy Director Lewis. [Doc. No. 35 at 14-15.] Defendants object to the ruling as to

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Director Lewis on two grounds. First, Defendants argue that Plaintiff has failed to allege

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any facts that establish her supervisory status over Dr. Ko. [Doc. No. 37 at 2.] However,

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as noted by the Magistrate Judge, Plaintiff alleges Director Lewis was responsible for the

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overall operation of the California Department of Corrections Health Care Department, and

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Director Lewis condoned the actions of her subordinate, Dr. Ko. [Doc. No. 35 at 14.]

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These allegation are sufficiently pled to establish that Dr. Ko was a subordinate of Director

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Lewis’.

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Second, Defendants object on the grounds that Plaintiff has failed to adequately

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plead supervisory liability on the part of Director Lewis to support a § 1983 claim.

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Defendants argue that Plaintiff’s allegations regarding Director Lewis’ level of

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involvement in decisions about his care are insufficient.1 [Doc. No. 37 at 3-4.]

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Additionally, Defendants contend the complaint fails to adequately allege the requisite

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deliberate indifference on the part of Director Lewis. [Id. at 4-5.] But, as found by

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Magistrate Stormes, Plaintiff alleges Deputy Director Lewis did more than simply review

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Plaintiff’s administrative appeal. [Doc. No. 35 at 14-15]. As the Recommendation reports,

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Plaintiff alleges that Director Lewis knew Dr. Ko refused to provide effective treatment for

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his chest pains and refused to refer him to a specialist and that Director Lewis condoned

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Dr. Ko’s actions directing Plaintiff to seek medical care at his own expense and denying

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him medical care because it was too expensive. [Id.] Further, as Magistrate Stormes noted,

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Plaintiff alleges that nonetheless Deputy Director Lewis denied his 602 Appeal and that

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the delay in treatment has caused him harm. [Id. at 15.] Thus, Plaintiff has sufficiently

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stated a claim against Deputy Director Lewis for deliberate indifference based upon her

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knowledge of and acquiescence in unconstitutional conduct by her subordinate, Dr. Ko.

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Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Therefore, this Court agrees with the

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Magistrate Judge that the motion to dismiss as to Deputy Director Lewis should be denied.

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B. Dr. Sangha

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Magistrate Judge Stormes denied Defendants’ motion to dismiss the claim against

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Dr. Sangha. [Doc. No. 35 at 13-14.] Defendants object to the ruling, arguing that the

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complaint is devoid of allegations sufficient to establish Dr. Sangha’s role as Dr. Ko’s

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Relatedly, Defendants assert that the court need not accept Plaintiff’s allegation of Deputy Director
Lewis’ job duties even at this stage of the litigation. [Doc. No. 37 at 3-4.] But, an informa pauperis
complaint should not be dismissed before any factual development is conducted simply because the
court finds the allegations unlikely. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
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supervisor and fails to allege how Dr. Sangha knew that the treatment provided by Dr. Ko’s

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was constitutionally deficient. [Doc. No. 37 at 6.] However, as the Magistrate Judge noted,

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Plaintiff does more than merely allege Dr. Sangha reviewed and denied his 602 Appeal, he

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alleges Dr. Sangha knew Dr. Ko refused to provide effective treatment and refused to refer

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him to a specialist, and yet did not take any actions to rectify the situation or stop his

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subordinate’s acts. [Doc. No. 35 at 14.] Further, as Magistrate Stormes pointed out,

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Plaintiff also alleges Dr. Sangha referred one of Plaintiff’s 602 Appeals to Dr. Ko for

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investigation despite knowing Plaintiff complained of Dr. Ko’s treatment. [Id. at 14.]

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Additionally, the Complaint alleges Dr. Sangha is responsible for the medical care of all

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inmates at CSP-Centinela including “the supervision, direction, and or proper training of

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the medical staff at CSP-Centinela, including the defendant Dr. S. Ko.” [Doc. No. 1 ¶ 8.]

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These alleged facts are sufficient to state a claim for deliberate indifference based on Dr.

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Sangha’s alleged knowledge and acquiescence in unconstitutional conduct. This Court

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agrees with the Magistrate Judge that the motion to dismiss as to Dr. Sangha should be

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denied.

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C. Dr. McCabe

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Magistrate Judge Stormes found that Plaintiff states a cognizable Eighth

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Amendment claim against Dr. McCabe. Defendants object to the ruling, arguing: (1) Dr.

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McCabe’s involvement in Plaintiff’s care was limited to review of his inmate appeal at the

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first level; (2) Dr. McCabe did not treat Plaintiff and interviewed him before Plaintiff had

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any interaction with Dr. Ko; and (3) Plaintiff is simply dissatisfied with Dr. McCabe’s

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decision to deny his healthcare appeal, which is not actionable under § 1983. [Doc. No. 37

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at 6-7.] However, as the Magistrate Judge noted, Plaintiff does not merely allege Dr.

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McCabe denied his administrative appeal, he alleges Dr. McCabe knew about his continued

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chest pains and requests to see a heart specialist, had authority to prevent a constitutional

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violation, and yet denied his request and delayed treatment for medical care that Plaintiff

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alleges was sorely needed. [Doc. No. 35 at 12.] Furthermore, Plaintiff’s allegations

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regarding deliberate indifference to his serious medical need predate his interactions with
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Dr. Ko. Plaintiff alleges that in October 2014 he began requesting medical assistance for

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his chest pains and to see a heart specialist but that these requests were denied and that the

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delay in treatment caused him harm. [Doc. No. 1 ¶¶ 12-23, 66-70.] As Judge Stormes

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highlighted, Plaintiff alleges Dr. McCabe is responsible for ensuring inmates who are

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transferred to other institutions continue receiving proper care and Dr. McCabe violated

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his Eighth Amendment rights by failing to make sure he received adequate medical care

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when he transferred to Centienela. Therefore, this Court agrees with the Magistrate Judge

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that the motion to dismiss as to Dr. McCabe should be denied.

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D. Dr. Ko

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Magistrate Judge Stormes concluded that Plaintiff’s Complaint states an Eighth

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Amendment claim for deliberate indifference to medical needs against Dr. Ko. [Doc. No.

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35 at 8-11.] Defendants object to this ruling, arguing the Complaint fails to adequately

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allege deliberate indifference by Dr. Ko or that Dr. Ko persisted in pursuing a medically

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unacceptable treatment path and at best Plaintiff alleges a difference of opinions with Dr.

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Ko. [Doc. No. 37 at 7-9.] In fact, Judge Stormes acknowledges that some, but not all, of

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Plaintiff’s allegations demonstrate a mere difference of opinion, before explaining that

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Plaintiff also alleges he informed Dr. Ko that the initial treatment plan was ineffective, Dr.

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Ko nodded “yes” when Plaintiff asked if he would first need to fall out from a heart attack

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to be referred to a cardiologist, and Plaintiff continues to have chest pains. [Doc. No. 35

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at 9.]

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Defendants also argue the two EKG’s and one chest x-ray performed on Plaintiff

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and the changing of Plaintiff’s medication from a NSAID to Tylenol are illustrative of Dr.

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Ko’s responsiveness to Plaintiff’s complaints. [Doc. No. 37 at 7-8.] Defendants assert that

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these actions are in direct contradiction to Plaintiff’s allegation that Dr. Ko failed to order

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diagnostic testing for cardiac disease and the Recommendation’s statement that Dr. Ko did

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nothing in response to Plaintiff’s complaint that the treatment plan was not working. [Id.]

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As to Defendants’ past treatments argument, “it does not dispense with Plaintiff’s

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continued reports of chest pain despite the treatment plan.” [Doc. No. 35 at 11:1-2.] As
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the Magistrate Judge noted, Plaintiff alleges that the treatment plan of rest, not to work out

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as much and to take Naproxin – was ineffective and that he continues to have chest pains.

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[Id. at 9.] Moreover, as Magistrate Stormes explained, the exhibit containing the EKG

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does not specify which doctor ordered the EKG, and notwithstanding the exhibit, Plaintiff

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alleges that Dr. Ko only performed a verbal examination and did not order any diagnostic

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testing and also alleges that he told Dr. Ko that the treatment plan was not working and that

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Dr. Ko did nothing in response. [Id. at 10.] Furthermore, as the Magistrate Judge pointed

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out, Plaintiff alleges that to the present, he still currently suffers from chest pain, and the

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added pain to his right side. [Id.]

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Therefore, the Court agrees with Magistrate Stormes, that if true, these facts could

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demonstrate Dr. Ko knew the treatment plan he placed Plaintiff on was ineffective yet

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continued on the treatment plan anyway and deliberately did not take steps to improve the

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situation. See Jett v. Penner, 439 F.3d 1091, 1097-98 (9th Cir. 2006).

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CONCLUSION

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The Court has conducted a de novo review of the Report and finds it to be thorough,

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complete, and an accurate analysis of the legal issues presented in the motion to dismiss.

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Therefore, the Court: (1) adopts the Report [Doc. No. 35] in full; (2) rejects Defendants’

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objections [Doc. No. 37]; and (3) Denies Defendants’ motion to dismiss [Doc. No. 24].

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Defendants are instructed to answer the Complaint within the time limits set forth in

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Federal Rule of Civil Procedure 12(1)(A)(i).

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It is SO ORDERED.
Dated: May 5, 2017

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