West v. Cox et al

Filing 64

ORDER Granting 61 Motion to Dismiss. IT IS FURTHER ORDERED that the Parties shall submit a proposed discovery plan/scheduling order within fourteen (14) days of this Order. Signed by Chief Judge Gloria M. Navarro on 10/18/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARY S. WEST,

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Plaintiff,

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vs.

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GREG COX, et al.,
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Defendants.

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Case No.: 2:15-cv-00665-GMN-VCF
ORDER

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Pending before the Court is the Motion to Dismiss, (ECF No. 61), filed by Defendants

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Dr. Romeo Aranas (“Aranas”), Yolanda Campbell (“Campbell”), Beebe Clark (“Clark”), Bob

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Faulkner (“Faulkner”), Jo Gentry (“Gentry”), Dr. Francisco Sanchez (“Sanchez”), and Dr.

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Richard Wulff (“Wulff”) (collectively “Defendants”). Plaintiff Mary S. West (“Plaintiff”) filed

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a Response, (ECF No. 62), and Defendants filed a Reply, (ECF No. 63). For the following

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reasons, the Motion to Dismiss is GRANTED.

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I.

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BACKGROUND
This case arises from alleged constitutional violations that occurred while Plaintiff was

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incarcerated at Florence McClure Women’s Correctional Center (“FMWCC”) in Las Vegas,

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Nevada. (Third Am. Compl. (“TAC”) ¶ 8, ECF No. 56). Plaintiff alleges she suffered or

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continues to suffer from the following medical conditions: (1) injuries to her right shoulder; (2)

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injuries to her left wrist; and (3) growths on her forehead and hands. (Id. ¶¶ 18–82).

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A.

Right Shoulder

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Plaintiff injured her right shoulder while performing her prison job assignment on

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August 1, 2013. (Id. ¶ 18). Dr. James Holmes (“Holmes”), a Nevada Department of

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Corrections (“NDOC”) medical doctor, examined Plaintiff, prescribed her Tylenol, and

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admitted her to an infirmary cell. (Id. ¶¶ 10, 19–20). Approximately one week later, Holmes x-

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rayed Plaintiff’s shoulder confirming multiple fractures and subsequently prescribed more

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Tylenol, provided Plaintiff a sling and an ace wrap, and released Plaintiff from the infirmary.

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(Id. ¶¶ 21–22).
In September 2013, Defendant Dr. Richard Wulff (“Wulff”), a medical doctor under

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contract with NDOC, saw Plaintiff for her shoulder injury and recommended she continue

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Ibuprofen for her pain. (Id.¶¶ 12, 28–29). In November 2013, Wulff saw Plaintiff again and

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determined that the fractures had healed. (Id. ¶ 31). In February 2014, Wulff reexamined

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Plaintiff and told her he could not treat her without a specific referral from NDOC. (Id. ¶¶ 34–

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35).
In August 2014, Plaintiff alleges that she complained to medical staff of extreme

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shoulder pain, believing she had suffered further damage to her shoulder. (Id. ¶ 36). On August

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21, 2014, Defendant Dr. Francisco Sanchez (“Sanchez”), an NDOC medical doctor, ordered an

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x-ray report of Plaintiff’s shoulder, which revealed a deformity caused by improper healing of

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the original fracture. (Id. ¶¶ 11, 37). Sanchez treated Plaintiff with an injection, more pain

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medication, and ordered a follow-up appointment. (Id. ¶ 40).

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On March 19, 2015, Plaintiff alleges that Wulff examined her and recommended an

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MRI. (Id. ¶ 48). Sanchez requested approval for the MRI which the Utilization Review Panel

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(“URP”) approved on March 31, 2015. (Id. ¶¶ 49, 51). On April 17, 2015, Plaintiff received an

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MRI that indicated various tears and injuries in her right shoulder. (Id. ¶¶ 53–54). Wulff

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diagnosed Plaintiff with a labral tear and a coracoacromial tear and recommended surgery. (Id.

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¶¶ 55–56). On June 15, 2015, Wulff performed surgery on Plaintiff’s shoulder. (Id. ¶ 57).

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Throughout this time, Plaintiff submitted kites and grievances regarding her shoulder

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pain and treatment to Aranas, the NDOC medical doctor; Gentry, the warden of FMWCC; and

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FMWCC nurses Clark and Faulkner. (Id. ¶¶ 9, 13–15, 24). Plaintiff alleges that these

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Defendants routinely denied her kites and grievances and did nothing to remedy the delay in

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treatment. (Id. ¶¶ 24–27). Plaintiff also asserts her family members phoned prison officials to

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inquire about her shoulder and wrist injuries. (Id. ¶ 44). On September 2, 2014, Faulkner

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allegedly warned Plaintiff to stop having people call the prison regarding her shoulder and

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wrist. (Id. ¶¶ 45–46).

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B.

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Plaintiff alleges she injured her left wrist as a result having to disproportionately rely on

Left Wrist

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her left arm while she awaited treatment for her right shoulder. (Id. ¶¶ 60–61). A fracture was

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confirmed and the URP approved surgery on June 3, 2014. (Id. ¶ 62). Plaintiff alleges that

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Aranas, Sanchez, and Wulff were collectively responsible “through their respective subordinate

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staff and/or personal selves” for scheduling and approving her medical treatment. (Id. ¶ 63).

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On June 30, 2014, Faulkner allegedly falsely informed Plaintiff that her case had not been

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reviewed by the URP. (Id. ¶ 65). Plaintiff alleges that on July 14, 2014, Campbell falsely

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informed Plaintiff that the surgical approval process had not been completed. (Id. ¶ 66). On

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September 5, 2014, Plaintiff alleges that Gentry falsely notified her that no surgery had been

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recommended on her wrist. (Id. ¶ 67). On October 13, 2014, Clark allegedly informed Plaintiff

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that her surgery had been rescheduled due to an unspecified breach of security. (Id. ¶¶ 68–69,

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109). During this time, Defendants Aranas, Clark, Faulkner, and Gentry allegedly ignored

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Plaintiff’s kites and grievances concerning her pending wrist surgery. (Id. ¶ 64). On November

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12, 2014, Wulff performed surgery on Plaintiff’s wrist. (Id. ¶ 72). Plaintiff states the delay in

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surgery caused her to needlessly and unreasonably endure several months of extreme pain. (Id.

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¶ 73).

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Relevant to the instant Motion, Plaintiff filed a second amended complaint on November

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11, 2016, (ECF No. 30), asserting six causes of action for Eighth Amendment violations.

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Defendants subsequently filed a motion to dismiss, (ECF No. 39), which the Court granted in

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part and denied in part. (See Order, ECF No. 50). The Court found that Plaintiff failed to state

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cognizable Eighth Amendment claims with respect to Counts II, III, IV, VI, and Count V as

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alleged against Aranas, Sanchez, and Wulff. (See id. 13:1–10). The Court denied Defendants’

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motion with respect to Count V against Campbell, Clark, Faulkner, and Gentry because

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Plaintiff sufficiently alleged these Defendants “deliberately delayed surgery the URP had

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approved, causing her to linger in pain.” (Id. 10:6–10).

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On April 17, 2018, Plaintiff filed her Third Amended Complaint, (ECF No. 56),

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bringing six causes of action for Eighth Amendment violations.1 On May 11, 2018, Defendants

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filed the instant Motion to Dismiss, (ECF No. 61).

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II.

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LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

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which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

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which it rests, and although a court must take all factual allegations as true, legal conclusions

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couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

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12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements

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of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This
standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
If the court grants a motion to dismiss for failure to state a claim, leave to amend should

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be granted unless it is clear that the deficiencies of the complaint cannot be cured by

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Count I is alleged solely against Holmes, (see TAC ¶¶ 83–87), who is not a party to this Motion. Accordingly,
the Court does not address this claim.

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amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant

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to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in

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the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the

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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

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DISCUSSION
Plaintiff asserts six causes of action for deliberate indifference to her medical conditions

in violation of the Eighth Amendment. In the instant Motion, Defendants seek to dismiss: (a)

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Counts II and IV against Aranas, Campbell, Clark, Faulkner, and Gentry for their alleged

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delays in getting Plaintiff treatment for her shoulder injury; (b) Count III as alleged against

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Sanchez and Wulff for their delay in recommending and performing an MRI; (c) Count V

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asserted against Aranas, Sanchez, and Wulff with respect to their treatment of Plaintiff’s wrist;

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and (d) Count VI against Clark and Sanchez concerning Plaintiff’s growths on her forehead and

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hands.2 (Mot. to Dismiss (“MTD”) 4:25–14:23, ECF No. 61). The Court addresses each claim

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in turn.

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To maintain an Eighth Amendment claim based on prison medical treatment, an inmate

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must show “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Prison officials are

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deliberately indifferent to a prisoner’s serious medical needs when they “deny, delay or

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intentionally interfere with medical treatment.” Wood v. Housewright, 900 F.2d 1332, 1334

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(9th Cir. 1990) (citing Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988)).

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In her Response to Defendants’ Motion to Dismiss, Plaintiff states that she does not contest dismissal of her
sixth cause of action. (Resp. 8:24–28, ECF No. 62). The Court therefore grants Defendants’ Motion to Dismiss
with respect to Count VI.
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Deliberate indifference has a two-part test. McGuckin v. Smith, 974 F.2d 1050 (9th

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Cir.1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc). First, the plaintiff must show a “serious medical need” by demonstrating

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that “failure to treat a prisoner’s condition could result in further significant injury or the

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‘unnecessary and wanton infliction of pain.’” Jett, 439 F.3d at 1096 (quoting Estelle, 429 U.S.

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at 104). Second, the plaintiff must show the defendant’s response to the need was deliberately

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indifferent. Id.

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A.

Counts II & IV as alleged against Aranas, Campbell, Clark, Faulkner, and
Gentry

In Count II, Plaintiff alleges that Aranas, Campbell, Clark, Faulkner, and Gentry by

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“knowingly refusing and failing to investigate the lack of treatment provided to [Plaintiff],”

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caused “prolonged pain to [Plaintiff], deformity, further damage to [Plaintiff’s] shoulder, and

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undue delay in diagnosis and surgical treatment.” (Third Am. Compl. (“TAC”) ¶ 90, ECF No.

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56). Count IV states that Defendants delayed diagnosis and surgery by refusing and failing to

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investigate delayed treatment, ignoring or denying Plaintiff’s grievances, providing Plaintiff

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with false information, and requesting that calls from her family cease. (Id. ¶¶ 89, 102).

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Defendants move to dismiss Counts II and IV on the grounds that Plaintiff fails to allege

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personal participation by Defendants and that denials of grievances and the alleged failure to

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investigate do not rise to the level of deliberate indifference. (MTD 9:8–13). Defendants

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continue that Plaintiff’s assertions of deliberate indifference are belied by her allegations that

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“every time she complained of pain, she was seen by the institutional physician, and was then

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scheduled and seen by an outside orthopedist.” (Id. 9:13–21). Plaintiff argues, in turn, that

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Defendants were on notice of her medical needs and by repeatedly denying her grievances,

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Defendants stunted the process by which Plaintiff sought to have her serious medical needs

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addressed. (Resp. to MTD 3:7–24).

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The Court finds that Plaintiff’s allegations fail to establish the requisite personal

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participation and causation elements of a deliberate indifference claim. “A person deprives

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another of a constitutional right, within the meaning of Section 1983, if he does an affirmative

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act, participates in another’s affirmative acts, or omits to perform an act which he is legally

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required to do that causes the deprivation of which [the plaintiff complains].” Leer v. Murphy,

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844 F.2d 628, 633 (9th Cir. 1988) (citation omitted). “The inquiry into causation must be

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individualized and focus on the duties and responsibilities of each individual defendant whose

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acts or omissions are alleged to have caused a constitutional deprivation.” Id. Liability under §

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1983 only attaches upon personal participation by a defendant in the constitutional violation.

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Taylor v. List, 880 F.3d 1040, 1050 (9th Cir. 1989). “The denial of prisoner grievances alone is

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insufficient to establish personal participation under 42 U.S.C. § 1983.” May v. Williams, No.

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2:10-cv-576-GMN-LRL, 2012 WL 1155390, at *4 (D. Nev. Apr. 4, 2012) (citing Rider v.

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Werholtz, 548 F. Supp. 2d 1188, 1201 (D. Kan. 2008)).

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Counts II and IV fail to state claims for deliberate indifference because they center upon

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Defendants’ denial of grievances which, standing alone, does not establish personal

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participation. While Plaintiff does allege Aranas, Campbell, Clark, Faulkner, and Gentry

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ignored her medical condition, Plaintiff correspondingly states that she received treatment by

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Doctors Holmes, Wulff, and Sanchez following her complaints. (TAC ¶¶ 25–28, 36–40, 50–

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52). Because Plaintiff was treated following her grievances, the Court cannot plausibly infer

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the delays in treatment or diagnosis were attributable to Defendants’ handling of Plaintiff’s

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grievances and kites. For the same reason, the Court cannot discern a causal link between

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Faulkner’s admonishment of Plaintiff for her family members’ calls and the delays in

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treatment.

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In short, Plaintiff fails to allege facts to show that Defendants, by denying her grievances
and kites, personally participated in, and caused, Plaintiff’s alleged constitutional deprivation.

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Moreover, because Plaintiff alleges a course of treatment concurrent with her complaints, the

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Court finds that Defendants’ actions or omissions do not amount to a “conscious disregard of

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an excessive risk to [Plaintiff’s] health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir.

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2004). Therefore, Defendants’ Motion to Dismiss with respect Counts II and IV is granted.

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B.

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In Count III, Plaintiff seeks to hold Defendants Sanchez and Wulff liable for their delay

Count III as alleged against Sanchez and Wulff

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in seeking an MRI and diagnosing Plaintiff’s fractures, resulting in a ten-month delay in

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surgery. (TAC ¶ 99). Defendant argues that Plaintiff fails to state a claim because the

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determination of whether and when to order an MRI constitutes an exercise of medical

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judgment that cannot give rise to an Eighth Amendment violation. (MTD 10:7–13).
A prisoner asserting an Eighth Amendment claim for denial of medical care must show

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“acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical

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needs.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). There is both an objective and a

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subjective component to an Eighth Amendment violation. LeMaire v. Maass, 12 F.3d 1444,

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1451 (9th Cir. 1993). The objective prong of the deliberate indifference standard requires the

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plaintiff to demonstrate a “serious medical need” by showing that failing to treat the prisoner’s

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condition could result in further significant injury or “the unnecessary and wanton infliction of

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pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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The second, subjective, prong of the analysis requires a plaintiff to show that the

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defendant’s response to the need was deliberately indifferent. Id. A plaintiff may satisfy the

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second prong by demonstrating that (1) the prison official engaged in a purposeful act or failure

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to respond to a prisoner’s pain or possible medical need, and (2) harm caused by the

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indifference. Id. “A prisoner need not show harm was substantial; however, such would

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provide additional support for the inmate’s claim that the defendant was deliberately indifferent

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to his needs.” Id. However, “a complaint that a physician has been negligent in diagnosing or

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treating a medical condition does not state a valid claim of medical mistreatment under the

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Eighth Amendment.” See Estelle, 429 U.S. at 106 (“It does not become a constitutional

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violation merely because the victim is [an inmate].”).

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Here, Count III satisfies the objective prong of the test by alleging the existence of

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extreme pain as well as deformities to her right shoulder, (TAC ¶¶ 23, 37, 39, 42, 94–95), and

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Defendants do not dispute these assertions. (See MTD 10:7–26). With respect to the subjective

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component, Plaintiff alleges that Defendants’ actions, or inactions, resulted in Plaintiff “not

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receiving an MRI and detection of the labral and various other tears in her shoulder until

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around 8 months after she complained,” of her injury and “until nearly 2 years after she initially

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complained.” (TAC ¶¶ 98–99). Plaintiff continues that such neglect “resulted in prolonged

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pain, improper healing, deformities, and additional damages to [Plaintiff’s] right shoulder.” (Id.

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¶ 100).

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While these allegations may be sufficient to establish gross negligence or medical

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malpractice, they fall short of meeting the “high legal standard” of deliberate indifference. See

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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“A showing of medical malpractice or

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negligence is insufficient to establish a constitutional deprivation under the Eighth

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Amendment.”). It is well established that differences of opinion between inmates and medical

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personnel, or between medical professionals, do not amount to deliberate indifference. Jackson

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v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). “To prevail under these principles, [a plaintiff]

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must show that the course of treatment the doctors chose was medically unacceptable under the

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circumstances,” and that defendants “chose this course in conscious disregard of an excessive

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risk to plaintiff’s health.” Id. (citations omitted).

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Here, Plaintiff does not allege facts to suggest that Wulff and Sanchez’s failure to order

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an earlier MRI arose from conscious disregard. Rather, Plaintiff’s allegations indicate the

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delays were due to differences of medical opinion, even if mistaken or negligent. For example,

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Plaintiff alleges that Wulff, upon seeing Plaintiff for her second appointment, made a medical

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judgment “that the fractures in [Plaintiff’s] shoulder had healed.” (See TAC ¶ 31). Even if

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erroneous, this would not amount to deliberate indifference. Plaintiff also alleges that Wulff

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and Sanchez did, in fact, subsequently treat her with Ibuprofen, an x-ray scan, an injection, and

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pain medication during the time between Plaintiff’s injury and ultimate MRI scan. That

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Plaintiff received treatment—even if substandard and ineffective—shows that Wulff and

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Sanchez did not overlook or ignore Plaintiff’s condition. Furthermore, once Wulff ultimately

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recommended the MRI, Sanchez requested formal approval within the week, and the URP

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authorized the MRI a week after that.

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These facts contrast with those of Jackson v. McIntosh, relied upon by Plaintiff, where

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the Ninth Circuit found a triable question of deliberate indifference in light of the plaintiff’s

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allegations that the defendant doctors were motivated by personal animus. 90 F.3d 330, 332

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(9th Cir. 1996). In Jett v. Penner, deliberate indifference was established where the defendant

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doctor falsely informed the plaintiff a follow-up appointment was scheduled and the doctor

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retroactively edited his medical notes to make it appear as if the plaintiff’s needs were less dire.

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439 F.3d 1091, 1097–98 (9th Cir. 2006). In Egberto v. Nevada Dep’t of Corr., the Ninth

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Circuit held that a five-month delay in performing an MRI could constitute deliberate

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indifference because of evidence that the defendants purposefully prevented the plaintiff’s MRI

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by pretextually transferring him to another facility on the day of his appointment. 678 F. App’x

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500, 503–04 (9th Cir. Feb. 6, 2017).

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Unlike those cases, Plaintiff has not shown that Sanchez and Wulff were improperly

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motivated in their treatment. Even if the treatment was substandard or negligent, the facts do

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not give rise to an inference of deliberate indifference. See Farmer v. Brennan, 511 U.S. 825,

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835 (1994) (noting the distinction between “deliberate indifference to serious medical needs,”

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and “negligen[ce] in diagnosing or treating a medical condition.”). Accordingly, the Court

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grants Defendant’s Motion as to Count III.

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C.

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In Count V, Plaintiff alleges that Defendants Aranas, Sanchez, and Wulff were

Count V as alleged against Aranas, Sanchez, and Wulff

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responsible for the delay in her wrist surgery. (TAC ¶¶ 71, 73, 109, 111–12). Specifically,

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Plaintiff alleges that Aranas, Sanchez, and Wulff, together with Faulkner, Clark, and Gentry,

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“intentionally and repeatedly delayed surgery . . . for overly-exaggerated reasons such as

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‘breach of security.’” (TAC ¶ 109).
While Plaintiff alleges that Aranas, Sanchez, and Wulff “either ignored, denied, or

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knowingly responded to [Plaintiff’s grievances] with false and inaccurate information,”

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Plaintiff’s examples of these alleged falsehoods are limited to those communicated by

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Campbell, Clark, Faulkner, and Gentry.3 As to Campbell, Clark, Faulkner, and Gentry,

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Plaintiff identifies the alleged false statements and how they impacted Plaintiff’s surgery

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timeline. (See TAC ¶¶ 65–68). With respect to Aranas, Sanchez, and Wulff, however, the TAC

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is silent as to what false information they relayed to Plaintiff and the way in which such

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information contributed to a delay in surgery.

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The Court recognizes that Plaintiff incorporates a new allegation that Aranas, Sanchez,

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and Wulff were collectively responsibility for scheduling Plaintiff’s surgery and approving

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scheduling changes. (Id. ¶¶ 109–10). Without specific facts evidencing conscious disregard,

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however, the Court cannot plausibly infer that Defendants’ failure to expedite her wrist surgery

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extends beyond negligence or medical malpractice. Accordingly, the Court dismisses Count V

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as alleged against Aranas, Sanchez, and Wulff.

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Count V as asserted against Campbell, Clark, Faulkner, and Gentry survived Defendants’ prior motion to
dismiss and therefore is not addressed in this Order. (See Order 10:5–25, 12:9–24, 13:9–10, ECF No. 50).
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In summary, the Court finds that Plaintiff’s Third Amended Complaint fails to state

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plausible claims for deliberate indifference with respect to Counts II, III, IV, V as alleged

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against Aranas, Sanchez, and Wulff, and VI. Because Plaintiff has not cured the deficiencies

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with these claims after three amendments, the Court finds that another amendment would be

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futile. Accordingly, the Court dismisses these causes of action with prejudice.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, (ECF No. 61), is

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GRANTED. The following causes of action are DISMISSED with prejudice: (1) Count II;

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(2) Count III; (3) Count IV; (4) Count V against Aranas, Sanchez, and Wulff; and (5) Count VI.

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IT IS FURTHER ORDERED that the Parties shall submit a proposed discovery

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plan/scheduling order within fourteen (14) days of this Order.
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DATED this _____ day of October, 2018.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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