Lawrence EuGene Gomes v. Mathis MD et al, No. 2:2017cv07022 - Document 16 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Third Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Fourth Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiffs' convenience. See document for further details. (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)
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Lawrence EuGene Gomes v. Mathis MD et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LAWRENCE E. GOMES, 11 12 Case No. CV 17-7022 SVW (SS) Plaintiff, 13 MEMORANDUM DECISION AND ORDER v. 14 DISMISSING THIRD AMENDED DAVID M. MATHIS, M.D., et al., 15 COMPLAINT WITH LEAVE TO AMEND Defendants. 16 17 I. 18 INTRODUCTION 19 20 21 22 23 24 25 Plaintiff Lawrence E. Gomes (“Plaintiff”), a California state prisoner proceeding pro se, constructively filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on September 20, 2017. (“Complaint,” Dkt. No. 1 at 9). The Court dismissed the Complaint and two subsequent iterations of Plaintiff’s claims with leave to amend due to pleading defects.1 (Dkt. Nos. 8 (Order Dismissing 26 27 28 A magistrate judge may dismiss a complaint with leave to amend without the approval of a district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (“[T]he dismissal of a complaint 1 Dockets.Justia.com 1 Complaint), 12 (Order Dismissing First Amended Complaint), 14 2 (Order Dismissing Second Amended Complaint)). 3 Court is Plaintiff’s Third Amended Complaint. 4 15). Pending before the (“TAC,” Dkt. No. 5 6 Congress mandates that district courts perform an initial 7 screening of complaints in civil actions where a prisoner seeks 8 redress 9 § 1915A(a). This Court may dismiss such a complaint, or any portion from a upon which relief can be granted, or (3) seeks monetary relief from 13 a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1- 14 2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 15 2000) (en banc). 16 the TAC with leave to amend. 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 27 28 it concludes U.S.C. 12 26 if 28 complaint (1) is frivolous or malicious, (2) fails to state a claim 25 process employee. 11 24 of or thereof, 23 service entity 10 22 before governmental that the For the reasons stated below, the Court DISMISSES with leave to amend is a non-dispositive matter.”). Pursuant to Federal Rule of Civil Procedure 72, a plaintiff who disagrees with a magistrate judge’s order dismissing a pleading with leave to amend may file an objection with the district judge. See Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015); see also Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004) (“‘District court review of even these nondispositive matters . . . can be compelled upon objection of the party against whom the magistrate has ruled.’”) (quoting McKeever, 932 F.2d at 798). Here, Plaintiff has not challenged the dismissal of any of his pleadings before the district judge. 2 1 II. 2 ALLEGATIONS OF THE THIRD AMENDED COMPLAINT 3 4 The sole Defendant named in the TAC is Dr. Mariana Lotasztain 5 (“Lotasztain”), a primary care provider at Solano State Prison. 6 (TAC at 3).2 Lotasztain is sued in her individual capacity. (Id.). 7 8 9 The TAC broadly “constitutionally alleges inadequate that care Plaintiff’s provided mental and 10 physical conditions.” 11 health, Plaintiff states that he suffers continuing psychological 12 problems 13 officer at an Arizona prison in 2008. 14 Plaintiff, 15 Elimination Act) follow-up care, testing, outside mental health 16 intervention upon request, and denied to speak to the Federal 17 Bureau for PREA Victims.” after being (Id. at 5). for Lotasztain repeatedly Lotasztain failed With respect to his mental raped “to by a female (Id.). provide PREA correction According to (Prison Rape (Id.). 18 19 In addition to failing to follow the CDCR’s PREA regulations, 20 Lotasztain also discontinued the “medication prescribed by other 21 mental health doctors for [Plaintiff’s] ongoing mood disorder, 22 post-traumatic stress disorder, sleep disorder, and other mental 23 and emotional injuries.” 24 that Lotasztain “took [him] off his Gabapentin in 2017 for no (Id.). In particular, Plaintiff claims 25 26 27 28 The Court will cite to specific pages of the TAC, including its exhibits, as though they formed a single consecutively paginated document. 2 3 1 reason.”3 (Id.) (emphasis in original). 2 Lotasztain of his (unspecified) medical need for Gabapentin, “she 3 told [him] to sue her if he didn’t like it and that she had no 4 knowledge of [his] PREA assaults.” 5 had properly reviewed Plaintiff’s mental health records, “[she] 6 would have known why and who put [Plaintiff] on Gabapentin[.]” 7 (Id.). 8 [California 9 [Department Operations Manual] ORDERS[] and delayed treatment” 10 caused Plaintiff “continued mental anguish and some permanent 11 disability.” Lotasztain’s failure Correctional When Plaintiff informed (Id.). to Health However, if Lotasztain follow Care unspecified Services]-2017 “CCHCS PREA DOM (Id. at 6). 12 13 With respect to his physical health, Plaintiff alleges that 14 Lotasztain “refused to send [him] to a heart cardiologist for his 15 ongoing grave heart condition for [his] pacemaker & Afib, in which 16 [his] 17 Furthermore, Lotasztain forced Plaintiff to take his insulin at 18 “5:30 a.m. and no food until 7:00 a.m. in a manner that is not in ejection fraction is only 35% and now 25%.”4 (Id.). 19 20 21 22 23 24 25 26 27 28 “Gabapentin is an anticonvulsant that is used to prevent and control seizures and is also used to relieve nerve pain following shingles. It is also prescribed to treat chronic neuropathic pain or fibromyalgia.” Rose v. Berryhill, 256 F. Supp. 3d 1079, 1085 (C.D. Cal. 2017) (internal citations omitted). 3 “Ejection fraction is a ‘measurement of how much blood the left ventricle pumps out with each contraction.’ A normal heart’s ejection fraction is between 50%–70%. An ejection fraction between 40% and 55% indicates damage. An ejection fraction under 40% may be evidence of heart failure or cardiomyopathy.” Kleveno v. Colvin, 2013 WL 1628715, at *7 (C.D. Cal. Apr. 16, 2013) (internal citations omitted). 4 4 1 compliance with American Diabetic Association standards,” which 2 caused Plaintiff to “shake, fall out, [and] pee on himself.” (Id.). 3 4 The TAC’s only claim alleges that Lotasztain is liable for 5 deliberate indifference to Plaintiff’s serious mental and physical 6 medical 7 compensatory damages, $100,000 in punitive damages, and $100,000 8 “for current and future testing.” needs. (Id.). Plaintiff is seeking $100,000 in (Id.). 9 10 III. 11 DISCUSSION 12 13 The Court must dismiss the TAC pursuant to 28 U.S.C. § 1915A(b) 14 because it violates Federal Rule of Civil Procedure 8. 15 notes that the TAC is Plaintiff’s fourth attempt to state a claim, 16 including his original Complaint. 17 marginal improvement over the prior versions of Plaintiff’s claims, 18 it 19 allegations to state plainly and simply what Lotasztain did or did 20 not do to violate his rights, without irrelevant, extraneous and 21 sometimes incomprehensible allegations or facts. is unclear whether The Court While the TAC’s allegations show Plaintiff will be able to focus his 22 23 The Court is not required to permit even a pro se plaintiff 24 to amend his claims indefinitely. 25 Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (leave to amend is 26 properly denied where amendment would be futile). 27 it is not “absolutely clear that the deficiencies of the complaint 28 could not be cured by amendment,” Akhtar v. Mesa, 698 F.3d 1202, 5 See Lipton v. Pathogenesis However, because 1 1212 (9th Cir. 2012) (citation and internal quotation marks 2 omitted), the Court will give Plaintiff one final opportunity to 3 amend his claims. 4 failure to correct the deficiencies described below may result in 5 a recommendation that this action be dismissed for failure to state 6 a claim. 7 (C.D. Cal. 2012) (“[A] district court’s discretion over amendments 8 is especially broad where the court has already given a plaintiff 9 one or more opportunities to amend his complaint.”) Plaintiff is expressly cautioned that the Ismail v. County of Orange, 917 F. Supp. 2d 1060, 1066 (citing DCD 10 Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987)); 11 see also Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, 12 Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (same). 13 14 Federal Rule of Civil Procedure 8(a)(2) requires that a 15 complaint contain “‘a short and plain statement of the claim 16 showing that the pleader is entitled to relief,’ in order to ‘give 17 the defendant fair notice of what the . . . claim is and the grounds 18 upon which it rests.’” 19 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)). 20 violated when a pleading “says too little,” and “when a pleading 21 says too much.” 22 2013) (emphasis in original). 23 obligation to give liberal construction to the filings of pro se 24 litigants, 25 Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013); see 26 also Erickson v. Pardus, 511 U.S. 89, 94 (2007) (per curiam). Bell Atlantic Corp. v. Twombly, 550 U.S. Rule 8 may be Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir. especially civil However, the courts also have an rights 27 28 6 claims made by inmates. 1 To establish a civil rights violation, a plaintiff must show 2 either the defendant’s 3 constitutional violation, or some sufficient causal connection 4 between the defendant’s conduct and the alleged violation. 5 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011). 6 claim for unconstitutional health care services, a prisoner must 7 demonstrate that the defendant was “deliberately indifferent” to 8 his “serious medical needs.” 9 (9th Cir. 2006). must direct, personal participation in the See To state a Jett v. Penner, 439 F.3d 1091, 1096 To establish a “serious medical need,” the 10 prisoner 11 condition 12 ‘unnecessary and wanton infliction of pain.’” 13 1096 (citation omitted); see also Morgan v. Morgensen, 465 F.3d 14 1041, 1045 (9th Cir. 2006) (the existence of a serious medical need 15 is determined by an objective standard). could show that result “failure in further to treat [the] significant prisoner’s injury or the Jett, 439 F.3d at 16 17 To establish “deliberate indifference” to such a need, a 18 prisoner must demonstrate: “(a) a purposeful act or failure to 19 respond to a prisoner’s pain or possible medical need, and (b) harm 20 caused by the indifference.” 21 indifference “may appear when prison officials deny, delay or 22 intentionally interfere with medical treatment, or it may be shown 23 by the way in which prison physicians provide medical care.” 24 (citation omitted). 25 to provide adequate medical care” alone does not state a claim. 26 Id. (citation omitted). 27 aware 28 disregarded that risk. of a Jett, 439 F.3d at 1096. Deliberate Id. Yet, an “inadvertent [or negligent] failure serious The defendant must have been subjectively risk of harm and must have consciously See Farmer v. Brennan, 511 U.S. 825, 839 7 1 (1994). An “isolated exception” to a defendant’s “overall 2 treatment” of a prisoner does not state a deliberate indifference 3 claim. Jett, 439 F.3d at 1096. 4 5 The TAC fails to comply with Rule 8 because it still is not 6 clear exactly which mental or physical conditions Plaintiff claims 7 constituted a serious medical need, what Lotasztain consciously 8 did or did not do that jeopardized Plaintiff’s health, and what 9 harm ensued from Lotasztain’s acts or failures to act. 10 11 The Court acknowledges that the attachments to the TAC (if 12 not the TAC itself) plainly reflect that Plaintiff suffers from a 13 wide array of medical conditions. 14 of the first-level response to a grievance filed by Plaintiff in 15 which he requested to have his Gabapentin prescription reinstated, 16 to speak to someone from PREA, and to see another doctor and receive 17 outside intervention. 18 grievance stated in part: For example, Exhibit 1 is a copy (TAC at 9). The prison’s response to the 19 20 Your medical records note you have hypertension, heart 21 disease requiring intervention in 2010 and placement of 22 a 23 defibrillator 24 life-long 25 infection, prostate enlargement, glaucoma, cholesterol 26 issues, 27 extremities, gunshot wound to the left arm and face, 28 chronic obstructive lung disease, diabetes, gout and a biventricular automated (AICD); atrial anticoagulation, history of implantable blood 8 cardioverter fibrillation chronic clots requiring hepatitis in both C upper 1 history of chronic 2 medication 3 Vistaril, Lidocaine patch, morphine sulfate immediate 4 release (IR) and Tylenol. 5 Communication System lists you as a DPO. list kidney notes you disease. are Your prescribed current Cymbalta, The Disability and Effective 6 7 (Id.).5 Similarly, Exhibit 5 is the first-level response to a 8 grievance 9 cardiologist. Plaintiff filed concerning (TAC at 22). his request to see a That response noted that Plaintiff 10 “suffer[s] from severe congestive heart failure with an ejection 11 fraction of less than 30%.” (Id. at 23). 12 13 While Plaintiff alleges that he has an unspecified “grave” 14 mental condition arising from his 2008 sexual assault, the TAC 15 fails to state clearly and concisely what, exactly, he believes 16 that 17 constitutional rights with respect to the PREA. 18 merely refers generally to the CCHCS’s PREA policy (attached as 19 Exhibit 3 to the TAC) and states that Lotasztain somehow failed to 20 follow 21 incomprehensible: Lotasztain the did or guidelines. did not The do to following violate his federal Instead, Plaintiff passage is simply 22 23 Mariana Lotasztain MD failed to uphold the CCHCS Volume 24 1 - Governance and Administration Chapter 16, 1.16.2 25 26 27 28 “DPO” is a mobility code used by the CDCR to designate an “intermittent wheelchair user. DPO inmates require a lower bunk and wheelchair accessible path of travel, but do not require wheelchair use inside the cell or a wheelchair accessible cell.” Howard v. Wang, 2014 WL 3687728, at *5 (E.D. Cal. July 24, 2014). 5 9 1 Prison Rape Elimination Act Procedure’s [sic], Effective 2 Date 12/2003 Revision 7/2007 at page 1-2 and attachment 3 A - Treatment recommendation for evaluation and follow 4 up care, testing, outside mental health interventions 5 for PTSD as required for all PREA victims. 6 7 (Id. at 5). Not only is the violation of a prison policy or 8 regulation insufficient, by itself, to constitute a violation of a 9 federal constitutional right, but also, many of the portions of 10 the PREA procedure highlighted by Plaintiff in Exhibit 3 would 11 seemingly not apply to a patient’s treatment ten years after an 12 alleged sexual assault. 13 next to each of nine items on a list of actions that licensed 14 health care staff must take pursuant to the CDCR’s Department 15 Operations Manual for “incidents reported within 72 hours of the 16 event,” including ensuring that the patient does “not shower, 17 remove clothing, use rest room facilities, or consume liquids”)). 18 Additionally, it is unclear how Lotasztain’s refusal “to speak to 19 the Federal Bureau for PREA Victims” put Plaintiff in jeopardy or 20 violated his constitutional rights. 21 how and when Lotasztain learned that he had been a victim of sexual 22 assault 23 prison’s 24 Lotasztain 25 provisions would cause Plaintiff unnecessary harm, or what specific 26 harm resulted from those failures. while (See id. at 16 (handwritten checkmarks incarcerated, PREA knew procedures that the which Plaintiff does not explain specific Lotasztain failure 27 28 10 to provisions failed follow to of the follow, why those specific 1 Similarly, while Plaintiff 3 providers for psychological conditions that may or may not have 4 any connection to the 2008 sexual assault, the only example he 5 gives 6 Lotasztain discontinued “for no reason.” 7 Exhibit 8 Gabapentin to ease physical pain, in particular in his legs, that 9 was disrupting his sleep. 1 to prescription the TAC for explains by other Lotasztain discontinued the prescribed that 2 is medications complains Gabapentin, that (Id. at 9). mental which he (TAC at 5). Plaintiff was health claims However, prescribed Accordingly, it is unclear 10 if Gabapentin was prescribed by a mental health provider and if it 11 is one of the medications (or the only medication) that Plaintiff 12 was 13 discontinued medications prescribed by mental health providers. referring to when he alleged that Lotasztain wrongly 14 15 With respect to his heart condition, Plaintiff adequately 16 alleges that he had a serious medical condition with an ejection 17 faction of 35% to 25%. 18 why the heart care he was receiving at the prison was inadequate, 19 why 20 consultation with a cardiologist, or what harm he suffered from 21 Lotasztain’s failure to refer him to a cardiologist. 22 with respect to his diabetes, Plaintiff adequately alleges that he 23 had a serious medical condition and that he suffered harm from low 24 blood sugar as a consequence of being forced to take his diabetes 25 medication in the early morning without food, two hours before 26 breakfast. 27 ever discussed the physical effects he suffered with Lotasztain or 28 that she ever learned of them from any other source. and how (Id. at 6). Lotasztain knew that However, he does not explain he required an immediate Similarly, However, the TAC does not explain whether Plaintiff 11 1 In addition to these substantive deficiencies, the presentation 2 of Plaintiff’s various conditions in the TAC is disjointed, as 3 Plaintiff’s claims seem to fluctuate between conclusory allegations 4 of constitutional violations and vague contentions that Lotasztain 5 failed to follow unspecified prison regulations. 6 TAC is challenging to understand and does not “give the defendant 7 fair notice of what the . . . claim is and the grounds upon which 8 it rests.” 9 355 U.S. 41, 47 (1957)); see also Kwan v. SanMedica Int’l 854 F.3d 1093 As a result, the Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 10 1088, (9th Cir. 2017) (holding that complaints may be 11 dismissed based on either lack of a cognizable legal theory or 12 insufficient facts under a cognizable theory). 13 Exhibits do not have any apparent relationship to the violations 14 alleged in the TAC. 15 are a letter written by Plaintiff addressed to “Attorneys” in which 16 Plaintiff appears to complain of trademark infringement of his “LG” 17 brand of children’s toys. 18 unexplained and unnecessary documents further obscure whatever 19 actual claims Plaintiff may be trying to assert, and should be 20 omitted in any further amendments to the complaint. Also, some of the For example, the last two pages of Exhibit 5 (Id. at 24-25). These extraneous, 21 22 To properly plead his claims, Plaintiff should allege only 23 the facts that are relevant to the claim against Lotasztain that 24 give rise to a § 1983 action. 25 explicitly describing Lotasztain’s particular acts and omissions, 26 Plaintiff has not plausibly pled that Lotasztain was personally 27 involved in violating his rights or that her actions had any causal Without more specific allegations 28 12 1 connection to the purported constitutional violations. 2 Accordingly, the TAC is dismissed, with leave to amend. 3 4 IV. 5 CONCLUSION 6 7 For the reasons stated above, the Third Amended Complaint is 8 dismissed with leave to amend. 9 this action, he is granted thirty (30) days from the date of this and Order If Plaintiff still wishes to pursue 10 Memorandum within which to file a Fourth Amended 11 Complaint. 12 defects 13 defendants or new allegations that are not reasonably related to 14 the claims asserted in the TAC. 15 any, shall be complete in itself and shall not refer in any manner 16 to the original Complaint, the FAC, the SAC or the TAC. Its caption 17 page shall bear the designation “Fourth Amended Complaint” and the 18 case number assigned to this action. In any amended complaint, Plaintiff shall cure the described above. Plaintiff shall not include new The Fourth Amended Complaint, if 19 20 The Fourth Amended Complaint should be short and concise. In 21 any amended complaint, Plaintiff should confine his allegations to 22 only 23 Plaintiff 24 Procedure 8(a), all that is required is a “short and plain statement 25 of the claim showing that the pleader is entitled to relief.” 26 Plaintiff is strongly encouraged to utilize the standard civil 27 rights complaint form when filing any amended complaint, a copy of 28 which is attached. those is operative advised facts that supporting pursuant to each Federal of his Rule claims. of Civil In any amended complaint, Plaintiff should 13 1 identify the nature of each separate legal claim and the Defendant 2 (by name) against whom the claim is asserted, and make clear what 3 specific 4 Plaintiff is strongly encouraged to keep his statements concise 5 and to omit irrelevant details. 6 to cite case law, include legal argument, or attach evidence to 7 support his claims. factual allegations support each separate claim. It is not necessary for Plaintiff 8 9 Plaintiff is explicitly cautioned that failure to timely file 10 a Fourth Amended Complaint, or failure to correct the deficiencies 11 described above, will result in a recommendation that this action 12 be dismissed with prejudice for failure to prosecute and obey Court 13 orders 14 Plaintiff is further advised that if he no longer wishes to pursue 15 this action, he may voluntarily dismiss it by filing a Notice of 16 Dismissal in 17 41(a)(1). A form Notice of Dismissal is attached for Plaintiffs’ 18 convenience. 19 instructed to clearly state whether he is dismissing the entire 20 action or only certain claims or certain Defendants. pursuant to Federal accordance with Rule of Federal Civil Rule of Procedure Civil 41(b). Procedure If Plaintiff utilizes the Notice of Dismissal, he is 21 22 DATED: November 28, 2018 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 23 24 25 26 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR 27 ANY OTHER LEGAL DATABASE. 28 14
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