(PC) Mitchell v. Tseng, et al., No. 2:2015cv01029 - Document 12 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/28/2016 GRANTING plaintiff's 7 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; and plaint iff's 2 motion for appointment of counsel is DENIED. IT IS RECOMMENDED that the complaint be dismissed without leave to amend; and the Clerk be directed to close this case. Referred to Judge Garland E. Burrell, Jr.; Objections to the findings and recommendations due within 21 days. (Yin, K)
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(PC) Mitchell v. Tseng, et al. Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY DALE MITCHELL, 12 No. 2:15-cv-1029 GEB AC P Plaintiff, 13 v. 14 S. TSENG, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 17 18 has requested appointment of counsel and authority pursuant to 28 U.S.C. § 1915 to proceed in 19 forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 20 U.S.C. § 636(b)(1). 21 22 I. Request to Proceed In Forma Pauperis Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 23 1915(a). ECF Nos. 7, 10. Accordingly, the request to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 1 Dockets.Justia.com 1 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 4 1915(b)(2). 5 6 II. Statutory Screening of Prisoner Complaints The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 17 1989) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 18 meritless legal theories or whose factual contentions are clearly baseless.”) (citation and internal 19 quotations omitted)), superseded by statute on other grounds as stated in Lopez v. Smith, 203 20 F.3d 1122, 1130 (9th Cir. 2000); Franklin, 745 F.2d at 1227. 21 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 22 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 23 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 24 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 26 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 27 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 28 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 2 1 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 2 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d 3 ed. 2004)). 4 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 5 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 6 Atl. Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 7 content that allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 9 under this standard, the court must accept as true the allegations of the complaint in question, 10 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 11 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 12 McKeithen, 395 U.S. 411, 421 (1969). 13 III. 14 Complaint Plaintiff alleges that in March of 2008, he was misdiagnosed with hepatocellular 15 carcinoma. 1 ECF No. 1 at 3. Plaintiff further alleges that defendant Tseng informed him that the 16 cancer had metastasized to other organs, including his lungs; that Tseng believed that plaintiff had 17 ninety days or less to live due to the advanced nature of the cancer; and that there were no 18 treatment options. Id. Defendant Tseng then recommended that plaintiff be transferred to a 19 hospice unit and plaintiff was transferred to hospice on April 10, 2008. Id. Plaintiff remained in 20 hospice until January 27, 2009. Id. at 4. It appears that after plaintiff was removed from hospice, 21 a biopsy was done on the mass on his liver and it was determined to be benign. Id. Plaintiff 22 claims that he was traumatized by his time in hospice because while there he “watched 23 approxiamatly [sic] (28) people pass away after getting to know them and watching the entire 24 process of what happens to them after the[ir] passing.” Id. at 3. He claims he was further 25 traumatized when, shortly after his release from hospice, he discovered that his sister was dying 26 of cancer. Id. at 4. Plaintiff states that he was recently informed during a telemedicine 27 28 1 The most common form of liver cancer. See http://www.mayoclinic.org/diseasesconditions/liver-cancer/basics/definition/con-20025222. 3 1 appointment that he had been misdiagnosed. Id. He alleges that defendants Tseng and Todd 2 were deliberately indifferent to his serious medical needs because they failed to order a diagnostic 3 liver biopsy before sending him to the hospice unit. Id. 4 IV. Deliberate Indifference to Medical Needs 5 A. 6 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate Legal Standard 7 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 8 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 9 plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s 10 condition could result in further significant injury or the unnecessary and wanton infliction of 11 pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d 12 at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citation and internal 13 quotations marks omitted), overruled on other grounds WMX Technologies v. Miller, 104 F.3d 14 1133 (9th Cir. 1997) (en banc)). 15 Deliberate indifference is established only where the defendant subjectively “knows of and 16 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 17 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate 18 indifference can be established “by showing (a) a purposeful act or failure to respond to a 19 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d 20 at 1096 (citation omitted). Civil recklessness (failure to act in the face of an unjustifiably high 21 risk of harm which is so obvious that it should be known) is insufficient to establish an Eighth 22 Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 (1994). 23 A difference of opinion between an inmate and prison medical personnel—or between 24 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 25 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 26 Toguchi, 391 F.3d at 1058. “[A] complaint that a physician has been negligent in diagnosing or 27 treating a medical condition does not state a valid claim of medical mistreatment under the Eighth 28 Amendment. Medical malpractice does not become a constitutional violation merely because the 4 1 victim is a prisoner.” Estelle, 429 U.S. at 106. 2 B. 3 Plaintiff alleges that he was mentally and emotionally traumatized when he was housed in Failure to State a Claim 4 a hospice unit for approximately nine months after being misdiagnosed as having untreatable, 5 terminal liver cancer. ECF No. 1 at 3-4. He states that defendants Tseng and Todd were 6 deliberately indifferent to his serious medical needs when they failed to order a diagnostic liver 7 biopsy prior to sending him to the hospice unit. These allegations fail to state a claim. 8 Plaintiff’s allegation that defendants should have ordered further diagnostic testing, 9 specifically a biopsy, constitutes a difference of opinion as to his diagnosis and treatment, and his 10 misdiagnosis is, at worst, medical malpractice. Neither of these things rises to the level of an 11 Eighth Amendment violation. Merrit v. Dang, No. 1:04-cv-06727-OWW-LJO-P, 2006 WL 12 657125, at *1-2; 2006 U.S. Dist. LEXIS 10620, at *3-5 (E.D. Cal. Mar. 14, 2006, adopted in full 13 April 25, 2006 2) (no Eighth Amendment violation where plaintiff claimed biopsy would have 14 prevented misdiagnosis that resulted in unnecessary surgery and plaintiff believing that he had 15 lung cancer for approximately ten months); Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 16 2012) (doctor’s decision not to operate because he incorrectly believed plaintiff did not have a 17 hernia was negligent misdiagnosis or disagreement with diagnosing doctor and did not constitute 18 deliberate indifference). 19 Plaintiff’s claims against defendants Tseng and Todd are also undermined by the 20 oncology/hematology telemedicine consultation report he relies on to show that he was 21 misdiagnosed. ECF No. 1 at 26-27. The report states that plaintiff was “diagnosed at University 22 of California Davis Medical Center Hepatology Clinic.” Id. at 26. The clinic is referred to as “a 23 world famous liver transplant facility at that time.” Id. The report further notes that plaintiff “had 24 appropriate care and had clinical diagnosis consistent with hepatocellular carcinoma despite 25 nondiagnostic biopsy. The [plaintiff’s] clinical course, however, would rule out metastatic 26 hepatocellular carcinoma.” Id. In order to establish an Eighth Amendment violation based on a 27 28 2 2006 WL 1085081; 2006 U.S. Dist. LEXIS 26617. 5 1 difference of opinion, plaintiff must show that defendants’ decision was “medically 2 unacceptable.” Toguchi, 391 F.3d at 1058, (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th 3 Cir. 1996)). The report plaintiff attaches to the complaint indicates that neither defendant was 4 involved with his diagnosis and that the diagnosis and treatment were appropriate under the 5 circumstances, although ultimately incorrect. 6 C. 7 If the court finds that a complaint should be dismissed for failure to state a claim, the court No Leave to Amend 8 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 9 (9th Cir. 2000). Leave to amend should be granted if it appears possible that the defects in the 10 complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. 11 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 12 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 13 the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. Carlson, 809 14 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear that a 15 complaint cannot be cured by amendment, the court may dismiss without leave to amend. Id. at 16 1105-06. 17 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 18 which relief may be granted. Moreover, given the nature of the claims plaintiff is making, this 19 court is persuaded that, while plaintiff may be able to state a cognizable state tort claim, he is 20 unable to allege any additional facts that would state a cognizable federal claim. Because 21 plaintiff’s Eighth Amendment claims should be dismissed without leave to amend, any state 22 claims should be dismissed as well, making amendment futile. 28 U.S.C. § 1367; United Mine 23 Workers of Am. V. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before 24 trial . . . the state claims should be dismissed as well.”). “A district court may deny leave to 25 amend when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 26 2013) (citing Chappel v. Laboratory Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000)). For 27 these reasons, the undersigned recommends dismissal of the complaint without leave to amend. 28 //// 6 1 V. Motion for Appointment of Counsel 2 Plaintiff has filed a motion for counsel. ECF No. 2. the United States Supreme Court has 3 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 4 cases, Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989), but in certain exceptional 5 circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 6 U.S.C. § 1915(e)(1), Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 7 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 8 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 9 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 10 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 11 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 12 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 13 most prisoners, such as lack of legal education and limited law library access, do not establish 14 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 15 Because the undersigned is recommending dismissal of the complaint, and it does not 16 appear that plaintiff can amend the complaint to state a federal claim, the motion for appointment 17 of counsel will be denied. 18 VI. Summary 19 Plaintiff’s application to proceed in forma pauperis is granted. 20 The court recommends dismissing plaintiff’s complaint without leave to amend because 21 the alleged misdiagnosis is a difference of opinion and possibly medical malpractice. A 22 difference of opinion and medical malpractice are not enough to state a claim under the Eighth 23 Amendment for deliberate indifference. The court will not consider state claims without a related 24 federal claim. 25 26 Plaintiff’s motion for counsel is denied because of the recommendation that the complaint be dismissed without leave to amend. 27 In accordance with the above, IT IS HEREBY ORDERED that: 28 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 7) is granted. 7 1 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 2 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 3 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 4 Director of the California Department of Corrections and Rehabilitation filed concurrently 5 herewith. 6 3. Plaintiff’s motion for appointment of counsel (ECF No. 2) is denied. 7 IT IS FURTHER RECOMMENDED that: 8 1. The complaint be dismissed without leave to amend. 9 2. The Clerk of the Court be directed to close this case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 12 days after being served with these findings and recommendations, plaintiff may file written 13 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATE: March 28, 2016 18 19 20 21 22 23 24 25 26 27 28 8
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