Walker v. Aranas et al

Filing 27

REPORT AND RECOMMENDATION that District Judge enter an order granting in part and denying in part ECF No. 23 Motion to Amend/Correct Complaint as specified. Objections to R&R due by 11/14/2017. Signed by Magistrate Judge William G. Cobb on 10/31/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EVERETT WALKER,

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Plaintiff,
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vs.
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ROMEO ARANAS, et al.,
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Defendants.
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______________________________________)

3:16-cv-00455-MMD-WGC
REPORT & RECOMMENDATION
OF U.S. MAGISTRATE JUDGE

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This Report and Recommendation is made to the Honorable Miranda M. Du, United States

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District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

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Before the court is Plaintiff’s Motion for Leave to Amend Complaint. (ECF No. 23.) Defendants

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did not file a response. After a thorough review, it is recommended that the motion be granted in part

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and denied in part.

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I. SCREENING
A. Standard

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“The court shall review, before docketing, if feasible or, in any event, as soon as practicable after

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docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or

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office or employee of a governmental entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify

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cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is

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frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary

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relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2).

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Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided

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for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C.

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§ 1915A(b)(1) track that language. Thus, when reviewing the adequacy of a complaint under 28 U.S.C.

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§ 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1), the court applies the same standard as is applied under

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Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under 12(b)(6)

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is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723

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(9th Cir. 2000) (citation omitted).

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In reviewing the complaint under this standard, the court must accept as true the allegations,

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construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s

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favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se

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complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v.

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Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).

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A complaint must contain more than a “formulaic recitation of the elements of a cause of action,”

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it must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more

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… than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”

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Id. (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)).

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At a minimum, a plaintiff should state “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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A dismissal should not be without leave to amend unless it is clear from the face of the complaint

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that the action is frivolous and could not be amended to state a federal claim, or the district court lacks

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subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995);

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O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

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B. Discussion

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Plaintiff filed his original Complaint, which the court screened, and the court determined Plaintiff

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could proceed with the following: a claim for violation of the Americans with Disabilities Act (ADA)

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against McDaniel, Stroud, Buencamino, Moyle, Cox, Gedney and Baca based on allegations that he has

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a mobility disability requiring a wheelchair, and Defendants refused to accommodate him at High Desert
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State Prison (HDSP); and a claim for deliberate indifference to serious medical needs under the Eighth

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Amendment against McDaniel, Stroud, Buencamino, Moyle, Cox, Gedney and Baca, based on

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allegations they were aware of an order that he required a wheelchair but disregarded the risk of his not

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having a wheelchair at HDSP. (Screening Order, ECF No. 3.) The Complaint did not contain facts to

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support a claim against Romeo Aranas; therefore he was dismissed without prejudice. (Id.)

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Plaintiff now seeks leave to amend, and submits a proposed First Amended Complaint (FAC).

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(ECF No. 23.) The proposed FAC names Romeo Aranas, Tito Beuncamino, J. Murphy, Isidro Baca,

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Shannon Moyle, and Karen Gedney. (ECF No. 23 at 3-5.) Plaintiff alleges that Defendants refused to

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provide him with necessary, physician-ordered hip replacement surgery; effective pain medication to

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treat pain associated with his degenerative hip disease; and transferred him to a non-ADA compliant

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facility where he was deprived of a wheelchair for sixteen months despite the fact that there was a

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medical order stating that he required a wheelchair and a “flat yard.” Specifically, he contends that in

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early 2015, Gedney, Moyle, and Baca classified Plaintiff to be transferred to HDSP, knowing of his

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medical restrictions. Once at HDSP, he filed a grievance complaining of extreme pain and difficulty

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using the toilet, shower, and accessing the dining hall related to being deprived of a wheelchair. He also

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noted the order for hip surgery. Murphy responded to the grievance, but Plaintiff claims she ignored his

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complaints of pain, and took no effort to see that Plaintiff got a wheelchair, walker or handicap cell. He

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filed a first level grievance, and Buencamino responded. Again, Plaintiff alleges that his requests for a

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wheelchair, pain relief and surgery were ignored. He filed a second level grievance, and Aranas

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responded. Plaintiff contends that Aranas ignored Plaintiff’s medical concerns. He also contends that

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Aranas, a member of the Utilization Review Panel (URP), failed to submit Plaintiff’s case concerning

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hip replacement surgery. Plaintiff goes on to allege that Gedney treated him while at Northern Nevada

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Correctional Center (NNCC), and only prescribed him ibuprofen despite knowledge that this did not

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alleviate his pain.

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The court finds that Plaintiff states colorable claims for violation of the ADA and Eighth

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Amendment deliberate indifference to serious medical needs against Gedney, Moyle, Baca, Murphy,

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Buencamino and Aranas. See United States v. Georgia, 546 U.S. 151, 157 (2006) (prisoner may state

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an ADA claim based on the “alleged deliberate refusal of prison officials to accommodate [a prisoner’s]
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disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other

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prison programs.”); Farmer v. Brennan, 511 U.S. 825, 828 (1994) (prison official violates the Eighth

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Amendment when he acts with deliberate indifference to a serious medical need)

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Plaintiff attempts to assert a claim for violation of the Due Process Clause based on his transfer

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to HDSP; however, that claim should not be allowed to proceed. An inmate does not have a right to be

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placed in a particular facility; nor is the court permitted to second-guess the prison’s decisions regarding

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a prisoner’s classification to a particular facility. Meachum v. Fano, 427 U.S. 215, 223-24 (1976).

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Plaintiff also mentions the Due Process Clause in the context of his allegations of denial of

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adequate medical care; however, those allegations give rise to claims under the Eighth Amendment and

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not the Due Process Clause.

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Finally, the FAC asserts state law claims of medical malpractice against the Defendants;

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however, Nevada law requires an action for medical malpractice to be dismissed if it is filed without an

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affidavit by a medical expert that supports the allegations. Nev. Rev. Stat. 41A.071. The Nevada

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Supreme Court has held that a medical malpractice action filed without the supporting affidavit is “void

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ab initio, meaning it is of no force and effect.” Washoe Med. Ctr. v. Second Jud. Dist. Ct., 148 P.3d 790,

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794, 122 Nev. 1298 (2006). Such an action “does not legally exist and thus it cannot be amended.” Id.

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Plaintiff’s FAC does not contain the required affidavit; accordingly, Plaintiff’s state law claims for

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medical malpractice should be dismissed without leave to amend.

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II. RECOMMENDATION

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IT IS HEREBY RECOMMENDED that the District Judge enter an order:

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(1) GRANTING IN PART AND DENYING IN PART Plaintiff’s Motion for Leave to Amend

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Complaint (ECF No. 23) as follows:

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(a) Plaintiff should be permitted to PROCEED with his claims under the ADA and the

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Eighth Amendment against defendants Gedney, Moyle, Baca, Murphy, Buencamino and Aranas.

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(b) The Due Process Clause claims should be DISMISSED WITH PREJUDICE;

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(c) The state law claims for medical malpractice should be DISMISSED WITH

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PREJUDICE;

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(2) The FAC (ECF No. 23 at 3-17) should be FILED;
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(3) The Attorney General’s Office should be directed to file a notice within twenty-one days of

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any order adopting this Report and Recommendation, advising the court and Plaintiff of: (a) the names

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of the defendants for whom it accepts service; (b) the names of the defendants for whom it does not

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accept service. As to those defendants for whom it does not accept service, the Attorney General’s Office

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shall file the last known address(es) under seal, but shall not serve the inmate Plaintiff with such

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information. If the last known address of the defendant(s) is a post office box, the Attorney General’s

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Office shall attempt to obtain and provide the last known physical address(es).

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(4) If service cannot be accepted for any of the named defendant(s), Plaintiff shall file a motion

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identifying the unserved defendant(s), and requesting issuance of a summons. For the defendant(s) as

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to which the Attorney General’s Office has not provided last-known-address information, Plaintiff is

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required to supply the full name and address for the defendant(s).

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(5) If the Attorney General’s Office accepts service of process for any named defendant(s), such

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defendants should be required to file and serve an answer or other responsive pleading within twenty-

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one days of the date it files a notice of acceptance of service.

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(6) From this point forward, Plaintiff shall serve upon defendant(s), or if an appearance has been

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entered by counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted

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for consideration by the court. Plaintiff shall include with the original document submitted for filing a

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certificate stating the date that a true and correct copy of the document was mailed or electronically filed

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to the defendants or counsel for the defendants. If counsel has entered a notice of appearance, Plaintiff

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shall direct service to the individual attorney named in the notice of appearance, at the physical or

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electronic address stated therein. The court may disregard any document received which has not been

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filed with the Clerk, and any document that fails to include a certificate showing proper service.

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The parties should be aware of the following:

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1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to this

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Report and Recommendation within fourteen days of receipt. These objections should be titled

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"Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points

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and authorities for consideration by the district judge.

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2. That this Report and Recommendation is not an appealable order and that any notice of appeal

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pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of

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judgment by the district court.

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DATED: October 31, 2017.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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