Bradford v. Khamooshian et al

Filing 71

REPORT AND RECOMMENDATION of United States Magistrate Judge Re: Defendants' Motions to Dismiss (ECF Nos. 37 , 41 ). It is recommended that: Defendants' Motions be granted and all claims in the Complaint be dismissed without prejudice. Objections to R&R due by 11/23/2018 Replies due by 11/30/2018. Signed by Magistrate Judge Mitchell D. Dembin on 11/8/2018. (All non-registered users served via U.S. Mail Service) (jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

RAYMOND ALFORD BRADFORD,
Plaintiff,

12
13

v.

14

K. KHAMOOSHIAN, ET AL.,
Defendants.

15
16

Case No.: 17-cv-02053-BAS (MDD)
REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: DEFENDANTS’ MOTIONS TO
DISMISS
[ECF Nos. 37, 41]

17
18

This Report and Recommendation is submitted to United States Judge

19

Cynthia Bashant pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule

20

72.1(c) of the United States District Court for the Southern District of

21

California.

22
23
24
25

For the reasons set forth herein, it is RECOMMENDED that
Defendants’ Motions to Dismiss be GRANTED.
I. PROCEDURAL HISTORY
Plaintiff Raymond Alford Bradford (“Plaintiff”) is a state prisoner at

26

Richard J. Donovan Correctional Facility (“Donovan”) proceeding pro se and

27

in forma pauperis. (ECF No. 5, 21). On September 25, 2017, Plaintiff filed a
1
17cv02053-BAS-MDD

1

complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff’s complaint

2

sets forth various claims against Doctor Kourosh Khamooshian, M.D.,

3

physician and surgeon at Alvarado Hospital Medical Center (“Alvarado”); and

4

Doctor Ronald Zhang, M.D., physician and surgeon at Donovan. Plaintiff

5

alleges that the Defendants violated his Eighth Amendment rights by: (1)

6

acting with deliberate indifference to his medical needs; (2) negligently and

7

intentionally inflicting unnecessary pain; and (3) committing medical

8

malpractice by failing to provide medical care, worsening Plaintiff’s condition.

9

(Id.).

10

On May 14, 2018, Defendant Zhang filed a Motion to Dismiss Plaintiff’s

11

Complaint. (ECF No. 37). Defendant Zhang contends that Plaintiff: (1) failed

12

to allege facts sufficient to state a cause of action for deliberate indifference;

13

and (2) failed to allege facts sufficient to state a cause of action for gross

14

negligence or medical malpractice. (Id.).

15

On May 23, 2018, Defendant Khamooshian also filed a Motion to

16

Dismiss the Complaint. (ECF No. 41). Defendant Khamooshian contends

17

that Plaintiff: (1) failed to sufficiently allege Defendant was deliberately

18

indifferent to his serious medical needs; (2) failed to sufficiently allege

19

Defendant Khamooshian was grossly negligent; and (3) failed to sufficiently

20

allege Defendant Khamooshian committed medical malpractice. (Id.).

21

Plaintiff’s opposition to these motions argue that Defendant

22

Khamooshian’s Motion did not include a dated proof of service and that

23

Plaintiff’s papers were initially stolen from him by the prison sergeant, law

24

librarian, and the assistant, and were withheld for eight days to deter him

25

from filing. (ECF Nos. 65, 63).

26
27

II. BACKGROUND FACTS
The facts as presented are taken from Plaintiff’s Complaint and are not
2
17cv02053-BAS-MDD

1

to be construed as findings of fact by the Court.
Plaintiff’s claims arise from a series of events beginning August 29,

2
3

2017. Plaintiff has a history of medical illness including: deficiencies of

4

protein C and S, ulcerative colitis, proctitis, and diverticulosis. (ECF No. 1 at

5

5).

6

On August 29, 2017, Plaintiff began experiencing pain in his rectal and

7

groin areas, bleeding, bloody diarrhea, and “mucus-pus stool.” (Id. at 5).

8

That same day, Plaintiff was transferred from his holding cell to Alvarado,

9

where he received a rectal exam, lab testing, abdomenal x-rays, and was

10
11

given pain medication. (Id. at 4-5).
On September 1, 2017, Plaintiff had his first and only interaction with

12

Defendant Khamooshian. (Id. at 5). Defendant Khamooshian explained to

13

Plaintiff that the August 29 lab findings were normal, that there was no

14

active bleeding, and that there was no finding of an ulcerative colitis flare up.

15

(Id. at 5). Defendant Khamooshian notified Plaintiff that the prison would

16

follow up in two weeks and he was discharged from the hospital. (Id. at 6).

17

Plaintiff does not allege that Defendant Khamooshian treated him further.

18

On September 2, 2017, Plaintiff submitted an emergency sick call slip,

19

and claims he continued to do so every day after, requesting to see a doctor

20

about his continued symptoms. (Id. at 6.). Roughly two weeks later, Plaintiff

21

was transferred to Alvarado for a colonoscopy, and then returned back to

22

Donovan. (Id. at 6.)

23

On September 18, 2017, after complaining of continuous pain, Plaintiff

24

was examined by Defendant Zhang. (Id. at 7). Defendant Zhang explained to

25

Plaintiff that in order to check for active bleeding, he would need to perform a

26

rectal exam each time Plaintiff visited the office. (Id.). Plaintiff claims that

27

Defendant Zhang stated, in a frustrated voice, “we cannot find your
3
17cv02053-BAS-MDD

1

colonoscopy results, so without it, I cannot give you anything. Your lab

2

studies are normal. You are not bleeding according to the test results. And

3

your follow-up with the gastroenterologist will be scheduled within a few

4

weeks.” (Id.).

5

Plaintiff alleges that Defendant Zhang withheld, delayed, and

6

interfered with Plaintiff’s access to treatment. (Id. at 8.) Plaintiff further

7

argues that “had [Defendant Zhang] not lied about the colonoscopy results,

8

Plaintiff’s ailment would not have worsen[ed].” (Id. at 10).
III. LEGAL STANDARD

9
10

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency

11

of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under

12

Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and

13

plain statement of the claim showing that the pleader is entitled to relief.”

14

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted).

15

The pleader must provide the Court with “more than an un-adorned, ‘the-

16

defendant-unlawfully-harmed-me’ accusation.” Id. at 678 (citing Bell Atl.

17

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the

18

elements of a cause of action, supported by mere conclusory statements will

19

not suffice.” Id. The court must assume the truth of the facts which are

20

presented and construe all inferences from them in the light most favorable

21

to the non-moving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.

22

2002).

23

A pro se pleading is construed liberally on a defendant’s motion to

24

dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895

25

(9th Cir. 2002) (citing Ortez v. Washington Cnty., 88 F.3d 804, 807 (9th Cir.

26

1996)). The pro se pleader must still set out facts in his complaint that bring

27

his claims “across the line from conceivable to plausible.” Twombly, 550 U.S.
4
17cv02053-BAS-MDD

1

at 570.

2

A pro se litigant is entitled to notice of deficiencies in the complaint and

3

an opportunity to amend, unless the complaint’s deficiencies cannot be cured

4

by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

5

Thus, the court is not required to “accept as true allegations that are merely

6

conclusory, unwarranted deductions of fact, or unreasonable inferences.”

7

Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (internal

8

citation omitted). Furthermore, the court may not “supply essential elements

9

of the claim that were not initially pled.” Ivey v. Bd. of Regents of the

10

University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
IV. DISCUSSION

11
12

A. Deliberate Indifference

13

Plaintiff alleges that Defendants violated his Eighth Amendment right

14

to be free from cruel and unusual punishment when Defendants deliberately

15

misdiagnosed Plaintiff’s ailments, delayed treatment, and denied him access

16

to treatment. (ECF No. 1 at 2-3.) Defendants contend that Plaintiff’s claim

17

fails as a matter of law because he has not pled facts sufficient to show that

18

either Defendant acted with deliberate indifference to Plaintiff’s medical

19

needs. (ECF Nos. 37 at 2; 41 at 2.)

20

The Eighth Amendment is violated when prison officials demonstrate

21

“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429

22

U.S. 97, 104 (1976); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). In

23

order to state a claim for deliberate indifference under the Eighth

24

Amendment, an inmate must plead facts sufficient to show both an objective

25

and a subjective requirement. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th

26

Cir. 2014).

27

First, to satisfy the objective prong, the inmate must show that he
5
17cv02053-BAS-MDD

1

suffered a deprivation or injury that was “objectively, sufficiently serious.”

2

Farmer v. Brennan, 511 U.S. 825, 834 (1994). A serious medical need is

3

shown if a failure to provide adequate treatment results in wanton or

4

unnecessary infliction of pain. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

5

Cir. 1992).

6

Next, to satisfy the subjective prong, the inmate must demonstrate that

7

“the official [knew] of and disregard[ed] an excessive risk to inmate health or

8

safety…” Farmer, 511 U.S. at 837. The official must have been aware of

9

facts or factual circumstances that would allow him to draw the inference

10

that a substantial risk of serious harm to the inmate’s health and safety

11

exists, and he must also draw that inference. Id.

12

“It is not enough that the plaintiff merely disagree with the course of

13

treatment provided. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

14

A difference in medical opinion is “insufficient, as a matter of law, to

15

establish deliberate indifference.” Id. (citing Jackson v. McIntosh, 90 F.3d

16

330, 332 (9th Cir. 1996).

17

1. Defendant Khamooshian

18

Plaintiff alleges that Defendant Khamooshian was deliberately

19

indifferent when he“[lied] about Plaintiff’s condition… knowing that lie would

20

punish Plaintiff unjustly, cause him unnecessary harm, and deny, delay, and

21

interfere with his access to adequate and constitutionally acceptable medical

22

care and treatment for his serious medical needs.” (ECF No. 1 at 8).

23

However, the complaint only alleges that that Defendant Khamooshian

24

interviewed Plaintiff on one occasion, where the doctor interpreted lab

25

results, and explained to Plaintiff that the findings were normal.

26
27

Dr. Khamooshian concluded that Plaintiff’s symptoms did not require
immediate treatment. Plaintiff fails to provide any documentation or
6
17cv02053-BAS-MDD

1

information which objectively shows that a serious injury was present that

2

impeded Plaintiff’s ability to continue ordinary daily activities. Even though

3

Defendant Khamooshian was confident that the lab results yielded no

4

abnormalities, he explained to Plaintiff that the prison would follow up in two

5

weeks. By providing Plaintiff with the lab results and scheduling a follow up

6

appointment, Defendant Khamooshian did not disregard Plaintiff’s health, as

7

Plaintiff so claims.
Further, Plaintiff alleges that Defendant Khamooshian lied when he

8
9

interpreted the lab results. This claim is unsupported by any factual

10

information. Plaintiff fails to support his contention that Defendant

11

Khamooshian lied or that proper treatment was wrongfully withheld.
Plaintiff’s disagreement with lab results and his unsupported claim of

12
13

inadequate treatment are not sufficient to constitute a constitutional

14

violation. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Plaintiff

15

has asserted insufficient information to ask the court to cross the line from

16

conceivability to plausibly of the claim, and has therefore failed to meet his

17

burden.

18

2. Defendant Zhang

19

Plaintiff alleges that Defendant Zhang was deliberately indifferent to

20

Plaintiff’s medical needs because he was aware of and failed to treat the

21

symptoms associated with Plaintiff’s history of ulcerative colitis flare ups.

22

Plaintiff argues that Defendant Zhang’s recommended course of treatment

23

was cruel and unusual, intended only to inflict pain on Plaintiff. (ECF No. 1

24

at 9).

25

During Plaintiff’s appointment with Defendant Zhang, the doctor

26

found no active bleeding and explained the need to check for bleeding at each

27

visit. Defendant Zhang also scheduled a follow up gastroenterologist
7
17cv02053-BAS-MDD

1

appointment. There is no objective showing of a serious medical need, no

2

showing of a deprivation of treatment, and no showing of sufficiently serious

3

pain that a doctor would have otherwise found worthy of additional

4

treatment.
Plaintiff asserts that he exhibited symptoms indicative of an ulcerative

5
6

colitis flare up, however, his test results and assessment at Alvarado showed

7

no symptoms. Plaintiff has failed to demonstrate that Defendant Zhang

8

knew of and disregarded an excessive risk to Plaintiff’s health. No inference

9

can be drawn in favor of a substantial risk of serious harm.
Plaintiff’s complaint asserts he disagreed with Defendant Zhang’s

10
11

findings and treatment plan, but a mere disagreement is not enough to

12

demonstrate deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1058

13

(9th Cir. 2004). The facts as pled by Plaintiff lack detail sufficient to

14

overcome the high burden of demonstrating deliberate indifference.
Accordingly, the Court RECOMMENDS that Defendants’ Motions to

15
16

Dismiss Plaintiff’s claims for Deliberate Indifference be GRANTED and that

17

Claim 1 be DISMISSED WITHOUT PREJUDICE.

18

B. Gross Negligence

19

Plaintiff alleges that Defendant Khamooshian “negligently

20

misdiagnosed Plaintiff [’s] symptoms [of] active bleeding, rectal pain, penis

21

pain, bloody diarrhea, [and] colitis flare up.” (ECF No. 1 at 10). Plaintiff also

22

asserts that Defendant Zhang’s assessment of the lab results and decision to

23

conduct rectal exams were grossly negligent. Defendants contend that, as a

24

result, Claim 2 for gross negligence cannot survive. (ECF Nos. 37 at 8; 41 at

25

17).

26

Gross negligence is “the want of even scant care” or an “extreme

27

departure from the ordinary standard of conduct.” Van Meter v. Bent
8
17cv02053-BAS-MDD

1

Construction Co., 46 Cal.2d 588, 594 (1956). As indicated in Van Meter, gross

2

negligence may consist of either “want of even scant care” or “extreme

3

departure from the ordinary standard of conduct,” but not necessarily both.

4

Gore v. Board of Medical Quality Assurance, 110 Cal. App. 3d 184, 197

5

(1980).

6

Defendant Khamooshian

7

During Defendant Khamooshian’s one interaction with Plaintiff, he

8

interviewed Plaintiff and reviewed test results. Defendant Khamooshian

9

discussed the normalcy of the findings and Plaintiff was discharged. Plaintiff

10

has not indicated how or why this patient-client interaction constitutes a

11

“want of even scant care” toward Plaintiff.

12

Therefore, due to the lack of detail alleged in the complaint, Plaintiff

13

has not demonstrated that Defendant Khamooshian’s conduct constituted an

14

extreme departure from the ordinary standard.

15

Defendant Zhang

16

Defendant Zhang reviewed Plaintiff’s lab reports, was aware of

17

Plaintiff’s medical history and alleged pain, and explained to Plaintiff why

18

rectal exams were necessary. Plaintiff disagreed, and claims that frequent

19

rectal exams would constitute cruel and unusual punishment.

20

Plaintiff has not demonstrated how Defendant Zhang’s assessment and

21

determination of the course of treatment was a departure from the ordinary

22

standard, or that he exhibited a “want of even scant care” toward Plaintiff.

23

Rather, Plaintiff has provided facts showing that Defendant Zhang took

24

multiple steps to treat him, and that Plaintiff disagreed with the course of

25

action. Plaintiff’s threadbare assertion of the elements is insufficient to infer

26

a claim of gross negligence.

27

Accordingly, it is RECOMMENDED that Defendants’ Motions to Dismiss
9
17cv02053-BAS-MDD

1

Plaintiff’s claim for gross negligence be GRANTED and Claim 2 be

2

DISMISSED WITHOUT PREJUDICE.

3

C. Medical Malpractice

4

Plaintiff alleges that by “deliberately misdiagnos[ing] Plaintiff’s

5

aliments” and “denying [him] treatment,” Defendants have committed

6

medical malpractice. (ECF No. 1 at 10).

7

In order to demonstrate medical malpractice, Plaintiff must

8

demonstrate: (1) a duty to exercise that degree of skill, knowledge and care

9

ordinarily possessed and exercised by members of their profession under

10

similar circumstances; (2) a breach of the duty to exercise such skill,

11

prudence, and diligence; (3) proximate causal connection between the conduct

12

and the injury; and (4) resulting loss or damage. Hanson v. Grode, 76

13

Cal.App.4th 601, 606 (1999).

14

However, since “an inadvertent failure to provide adequate medical care

15

cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or

16

to be repugnant to the conscience of mankind, a complaint that a physician

17

has been negligent in dispersing or treating a medical condition [is

18

insufficient to] state a valid claim of medical mistreatment under the Eighth

19

Amendment. Medical malpractice does not become a constitutional violation

20

merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106,

21

97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976).

22

Under California law, “mere error of judgment, in the absence of a want

23

of reasonable care and skill in the application of his medical learning…will

24

not render a doctor responsible for untoward consequences in the treatment

25

of his patient.” Huffman v. Lindquist, 37 Cal. 2d 465, 475 (1951).

26

Defendant Khamooshian

27

Plaintiff alleges that Defendant Khamooshian committed medical
10
17cv02053-BAS-MDD

1

malpractice when he failed to provide medical care to Plaintiff. (ECF No. 1 at

2

10). Plaintiff claims that he suffers pain daily. (Id.).

3

When Defendant Khamooshian interviewed Plaintiff at the hospital, he

4

interpreted lab results and discussed a future appointment. He had a duty to

5

exercise diligence, care, and skill such as is ordinarily possessed by other

6

members of the profession.

7

Although Plaintiff disagreed with Defendant Khamooshian’s

8

interpretation of the labs, he has not alleged facts sufficient to show that

9

Defendant Khamooshian’s assessment and interpretation of the medical labs

10

breached his duty. Further, Plaintiff has not shown that Defendant

11

Khamooshian’s assessment and evaluation contributed to Plaintiff’s injury.

12

Plaintiff has failed to show that Defendant’s interpretation of the lab results

13

caused further injury.

14

Plaintiff alleges scant facts by which he concludes he was damaged by

15

Defendant Khamooshian’s conduct. He asserts that “he suffers unnecessary

16

pain daily,” but fails to provide further detail. (ECF No. 1 at 10). Plaintiff

17

does not relate his pain to improper lab interpretations, yet that

18

interpretation was the only service Defendant Khamooshian provided to

19

Plaintiff. Therefore, the claim of medical malpractice is insufficiently pled

20

with regard to Defendant Khamooshian.

21

Defendant Zhang

22

Plaintiff alleges that Defendant Zhang committed medical malpractice

23

because, although Defendant Zhang was aware of Plaintiff’s medical history,

24

he lied and failed to treat Plaintiff’s ailments. (ECF No. 1 at 10). Plaintiff

25

alleges, but does not support the contention, that the misdiagnosis was

26

deliberate. (Id.)

27

Without including facts demonstrating how Defendant Zhang breached
11
17cv02053-BAS-MDD

1

his duty as a medical professional, or how that breach is the proximate cause

2

of Plaintiff’s damages, the Court cannot plausibly infer medical malpractice.

3

Therefore, the claim of medical malpractice against Defendant Zhang has

4

been insufficiently pled.

5

Accordingly, it is RECOMMENDED that Defendant’s Motion to Dismiss

6

Plaintiff’s claim for medical malpractice be GRANTED and Claim 3 be

7

DISMISSED WITHOUT PREJUDICE.

V. CONCLUSION

8
9
10
11
12

Based on the foregoing, it is RECOMMENDED that:
Defendants’ Motions be GRANTED and all claims in the Complaint be
DISMISSED WITHOUT PREJUDICE.
This Report and Recommendation will be submitted to the United

13

States District Judge assigned to this case, pursuant to the provisions of 28

14

U.S.C. § 636(b)(1). Any party may file written objections with the court and

15

serve a copy on all parties by November 23, 2018. The document shall be

16

captioned “Objections to Report and Recommendation.” Any reply to the

17

objections shall be served and filed by November 30, 2018.

18

The parties are advised that failure to file objections within the

19

specified time may waive the right to raise those objections on appeal of the

20

court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

21
22

IT IS SO ORDERED.
Dated: November 8, 2018

23
24
25
26
27
12
17cv02053-BAS-MDD