Hoffman v. Khatri et al, No. 3:2009cv00172 - Document 29 (S.D. Cal. 2009)
Court Description: ORDER granting 21 Defendant Lai's Motion to Dismiss for failing to state a claim pursuant to FED.R.CIV.P.12(b)(6). Signed by Judge Dana M. Sabraw on 12/9/09. (All non-registered users served via U.S. Mail Service)(lao)(jrl).
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Hoffman v. Khatri et al Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 GARRETT HOFFMAN, CDCR #F-39330, Civil No. Plaintiff, 13 16 ORDER GRANTING DEFENDANT LAI’S MOTION TO DISMISS FOR FAILING TO STATE A CLAIM PURSUANT TO FED.R.CIV.P. 12(b)(6) vs. 14 15 09-0172 DMS (RBB) D. KHATRI; C. COOK; S. AYMAR; N. TETTEH; C. NAVAMANI; C. LAI; S. KO, [Doc. No. 21] Defendants. 17 18 I. 19 PROCEDURAL BACKGROUND 20 Garrett Hoffman (“Plaintiff”), a prisoner currently incarcerated at Centinela State Prison 21 (“CEN”) in Imperial, California, proceeding pro se and in forma pauperis, filed this civil rights 22 action pursuant to 42 U.S.C. § 1983 on January 27, 2009. 23 On July 22, 2009, the Court granted Defendant Khatri, Cook and Ko’s Motion to Dismiss 24 Plaintiff’s Complaint for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6).1 Because 25 Defendants Aynmar, Tetteh, Navamani and Lai had yet to be served, the Court simultaneously 26 ordered Plaintiff to show cause why his claims against these parties should not be dismissed for 27 28 1 The Court granted Plaintiff 60 days leave to file an Complaint in order to address the deficiencies of pleading against Defendants Khatri, Cook and Ko, but Plaintiff failed to do so. K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 1 09cv0172 DMS (RBB) Dockets.Justia.com 1 failure to prosecute pursuant to FED.R.CIV.P. 4(m). See July 22, 2009 Order [Doc. No. 14] at 2 9-10. 3 On August 27, 2009, Plaintiff filed a Motion requesting an extension of time in which to 4 serve Defendants Aynmar, Tettah, Navamani and Lai [Doc. No. 17]. On September 8, 2009, 5 the Court granted Plaintiff’s request and re-directed U.S. Marshal service pursuant to 28 U.S.C. 6 § 1915(d) and FED.R.CIV.P. 4(c)(3) [Doc. No. 19]. 7 8 On October 1, 2009, Defendant C. Lai filed a Motion to Dismiss for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 21]. Plaintiff has filed no Opposition.2 9 The Court has determined that Defendant’s Motion is suitable for disposition upon the 10 papers without oral argument and that no Report and Recommendation from Magistrate Judge 11 Ruben B. Brooks is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). 12 II. 13 PLAINTIFF’S FACTUAL ALLEGATIONS 14 On August 5, 2007, Plaintiff was incarcerated at Centinela State Prison (“CEN”). 15 (See Compl. at 1.) While Plaintiff was working in the Facility “D” kitchen, he slipped on a 16 puddle of water on the floor, fell and caused injury to his back. (Id. at 4.) A Medical Technical 17 Assistant (“MTA”) placed Plaintiff on a backboard. (Id.) However, Plaintiff claims he fell off 18 the backboard because he was not strapped down by the MTA. (Id.) 19 Plaintiff was brought to Centinela’s Central Health facility, lifted onto a gurney but again, 20 fell off the backboard. (Id.) Doctor Goodhealth examined Plaintiff and prescribed Aurazine for 21 his “excruciating pain.” (Id.) Plaintiff was also prescribed ibuprofen but it failed to mitigate his 22 pain. (Id.) From the date of his injury to the present, Plaintiff claims he continued to “inform 23 medical staff and custody of his continued severe excruciating lower back pain.” (Id.) From 24 August 22, 2007 to April 20, 2008, Plaintiff alleges that he was denied his prescribed 25 medications. (Id. at 5.) 26 27 2 28 Defendants Tetteh and Navamani have each filed separate Motions to Dismiss [Doc. Nos. 26, 27]. These Motions have been set for hearing on February 12, 2009 and will be addressed in a separate Order at that time. Service upon the sole remaining Defendant, Aymar, was returned unexecuted on October 13, 2009 [Doc. No. 23]. 2 K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 09cv0172 DMS (RBB) 1 On November 30, 2007, Health Care Appeals Coordinator C. Cook reviewed Plaintiff’s 2 medical records and found that prison officials had complied with orders written by Dr. Aymar 3 on December 6, 2007 to refer Plaintiff to an Orthopedic doctor, and had provided Plaintiff with 4 Tylenol, Naprosyn and physical therapy. (Id.) On December 12, 2007, Defendant Cook 5 partially granted Plaintiff’s administrative grievance. Plaintiff alleges that despite the “partial 6 grant,” Cook’s response did not address his concerns. Plaintiff further alleges that Defendants 7 Aymar, Navamani, Ko and Tetteh, his primary care physicians since August 5, 2007, “have done 8 nothing which would correct the severe excruciating lower back pain” that Plaintiff continues 9 to suffer. (Id. at 6.) 10 On February 8, 2008, Defendants Cook and Khatri “partially granted” Plaintiff’s request 11 for a cane, medications and to be examined by a “back specialist.” (Id.) However, Plaintiff 12 claims he did not receive a cane nor was he referred to a back specialist. (Id.) Defendant 13 Navamani “finally ordered a routine orthopedic consultation” and more pain medication on 14 February 26, 2008.” (Id. at 7.) 15 On either March 27, 2008 or April 24, 2008, Plaintiff claims to have been examined by 16 Dr. Lai in the Central Health orthopedic clinic. (Id. at 8; see also Pl.’s Ex. A [Doc. No. 1-1] at 17 5, 10.) Plaintiff claims Dr. Lai recommended a Magnetic Resonance Imaging (“MRI”). (Id.) 18 On May 8, 2008, Plaintiff claims to have attended a follow-up visit with his primary care 19 provider, who submitted a referral for the MRI. (Id.. at 8, Pl.’s Ex. A at 5.) Plaintiff claims to 20 have been examined again by his primary care provider on May 23, 2008 and June 9, 2008, but 21 was “deprived of Dr. Lai’s recommended MRI.” (Compl. at 8.) 22 On August 25, 2008, a Director’s Level Appeal Decision was issued denying Plaintiff’s 23 administrative grievance. (Id.; see also Pl.’s Ex. A [Doc. No. 1-1] at 5-6.) The Director’s Level 24 Decision indicates Dr. Lai’s MRI referral was still “pending approval.” (Pl.’s Ex. A at 5.) 25 As a result, Plaintiff claims “all Defendants” have “delayed and deprived” him of 26 “corrective care [for his] sufficiently serious condition,” causing him “needless suffering” in 27 violation of the Eighth Amendment. (Compl. at 8-12.) Plaintiff seeks $500,000 in general and 28 punitive damages. (Id. at 16.) K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 3 09cv0172 DMS (RBB) 1 III. 2 DEFENDANTS’ MOTION TO DISMISS 3 A. Defendant’s Arguments 4 Defendant Lai seeks dismissal of Plaintiff’s Complaint pursuant to Rule 12(b)(6) on two 5 grounds: (1) he is entitled to Eleventh Amendment immunity to the extent Plaintiff seeks money 6 damages against him in his official capacity; and (2) Plaintiff has failed to allege facts sufficient 7 to show that he acted with deliberate indifference to Plaintiff’s serious medical needs in violation 8 of the Eighth Amendment. (See Def. Lai’s Mem. of P&As in Supp. of Mot. [Doc. No. 21] 9- 9 15.) FED.R.CIV.P. 12(b)(6) Standard of Review 10 B. 11 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 12 sufficiency of a claim” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because Rule 13 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s substantive merits, “a 14 court may [typically] look only at the face of the complaint to decide a motion to dismiss,” Van 15 Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002), and at any exhibits 16 which are attached. See FED.R.CIV.P. 10(c) (“A copy of any written instrument which is an 17 exhibit to a pleading is a part thereof for all purposes.”); Schneider v. California Dept. of 18 Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 19 A motion to dismiss should be granted if a plaintiff’s complaint fails to contain “enough 20 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 21 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that 22 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 23 alleged.” Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 24 U.S. at 556, 570). 25 While allegations of material fact are accepted as true and construed in the light most 26 favorable to the nonmoving party, Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th 27 Cir. 1996), the court need not accept as true generic legal conclusions, unwarranted deductions 28 of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 4 09cv0172 DMS (RBB) 1 (9th Cir. 2001); Iqbal, 129 S.Ct. at 1949 (“Threadbare recitals of the elements of a cause of 2 action, supported by mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 3 (on motion to dismiss court is “not bound to accept as true a legal conclusion couched as a 4 factual allegation.”). “The pleading standard Rule 8 announces does not require ‘detailed factual 5 allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me 6 accusation.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). 7 Thus, “[w]hile legal conclusions can provide the framework of a complaint, they must 8 be supported by factual allegations. When there are well-pleaded factual allegations, a court 9 should assume their veracity and then decide whether they plausibly give rise to an entitlement 10 to relief.” Iqbal, 129 S.Ct. at 1950. “The plausibility standard is not akin to a ‘probability 11 requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” 12 Id. at 1949. Where a complaint pleads facts that are “merely consistent with” a defendant’s 13 liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” 14 Id.; Twombly, 550 U.S. at 570 (when a plaintiff has not “nudged [his] claims across the line 15 from conceivable to plausible, [his] complaint must be dismissed.”). 16 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 17 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive of 18 a claim entitling the plaintiff to relief.” Moss v. United States Secret Service, 572 F.3d 962, 969 19 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949). 20 C. 21 Defendant Lai first seeks dismissal to the extent Plaintiff seeks money damages, yet has 22 Eleventh Amendment Immunity sued Lai in his “official capacity.” (Def.’s P&As at 9-10, 14-15.) 23 While the Eleventh Amendment bars a prisoner’s section 1983 claims against state actors 24 sued in their official capacities, Will v. Michigan Dep’t of State Police, 4[91] U.S. 58, 66 (1989), 25 it does not bar damage actions against state officials sued in their personal or individual 26 capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991); Pena v. Gardner, 976 F.2d 469, 472-73 (9th 27 Cir. 1992). When a state actor is alleged to have violated both federal and state law and is sued 28 for damages under section 1983 in his individual or personal capacity, there is no Eleventh K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 5 09cv0172 DMS (RBB) 1 Amendment bar, even if state law provides for indemnification. Ashker v. California Dep’t of 2 Corrections, 112 F.3d 392, 395 (9th Cir. 1997). 3 Plaintiff brings this § 1983 suit against all Defendants in both their individual and official 4 capacities. (Compl. at 2-3.) The Supreme Court has made it clear that a plaintiff can establish 5 personal liability in a section 1983 action simply by showing that each official acted under color 6 of state law in deprivation of a federal right. Hafer, 502 U.S. at 25. 7 Consequently, the Court GRANTS Defendant Lai’s Motion to Dismiss on Eleventh 8 Amendment ground–but only to the extent that Plaintiff seeks damages against him in his official 9 capacity. The Eleventh Amendment imposes no bar to Plaintiff’s damages action against Dr. 10 Lai in his personal capacity. See Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995). 11 D. 12 Defendant Lai also seeks dismissal on grounds that Plaintiff has failed to plead facts to 13 show the deliberate indifference required to support an Eighth Amendment violation. (See 14 Def’s. P&As at 10-13.) The Court agrees. 15 Eighth Amendment Inadequate Medical Treatment Claims 1. Standard of Review 16 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 17 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 18 452 U.S. 337, 347 (1981). A prisoner’s claim of inadequate medical care does not rise to the 19 level of an Eighth Amendment violation unless (1) “the prison official deprived the prisoner of 20 the ‘minimal civilized measure of life’s necessities,’” and (2) “the prison official ‘acted with 21 deliberate indifference in doing so.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) 22 (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). Before it can 23 be said that a prisoner’s civil rights have been abridged, “the indifference to his medical needs 24 must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support 25 this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) 26 (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). “[A] complaint that a physician has been 27 negligent in diagnosing or treating a medical condition does not state a valid claim of medical 28 mistreatment under the Eighth Amendment. Medical malpractice does not become a 6 09cv0172 DMS (RBB) K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 1 constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see 2 also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). 3 A prison official does not act in a deliberately indifferent manner unless the official 4 “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 5 U.S. 825, 834 (1994). Deliberate indifference may be manifested “when prison officials deny, 6 delay or intentionally interfere with medical treatment,” or in the manner “in which prison 7 physicians provide medical care.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), 8 overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 9 (en banc). Where a prisoner alleges delay in receiving medical treatment, he must show that the 10 delay led to further harm. Id. at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 11 766 F.2d 404, 407 (9th Cir. 1985)). 2. 12 Application to Plaintiff’s Complaint 13 Defendant Lai does not challenge the objective basis for Plaintiff’s Eighth Amendment 14 claim, i.e, that he suffers from a “serious medical need.” (Compl. at 8.) Instead, Lai argues that 15 Plaintiff’s allegations do not show any deliberate indifference on his part. Specifically, Lai 16 argues that Plaintiff admits he is being treated primarily by primary care providers at CEN who 17 referred him for an orthopedic consult. As a result, Dr. Lai, an orthopedic surgeon, is alleged 18 to have examined Plaintiff on only one occasion, on either March 27, 2008 or April 24, 2008. 19 (See Compl. at 8; cf., Pl.’s Ex. A at 5.) At that time, Plaintiff further claims it was Dr. Lai who 20 ultimately recommended an MRI. (Id.) Plaintiff makes no further allegations against Lai, and 21 most importantly, does not allege any facts to suggest that Dr. Lai was responsible for approving, 22 conducting or delaying the MRI he himself recommended. See Iqbal, 129 S. Ct at 1948 23 (“[P]laintiff must plead that each Government-official defendant, through the official’s own 24 individual actions, has violated the Constitution.”). Nor has Plaintiff alleged that he was harmed 25 by any delay. McGuckin, 974 F.3d at 1060; Wood v . Housewright, 900 F.2d 1332, 1334 (9th 26 Cir. 1990) ( Eighth Amendment is not violated merely because a prisoner’s treatment “was not 27 as prompt or efficient as a free citizen might hope to receive.”). 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 7 09cv0172 DMS (RBB) 1 “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. To the 2 extent that Plaintiff suggests Dr. Lai should have “assured” that his recommendation for an MRI 3 was later authorized by Plaintiff’s primary care doctors at CEN after Dr. Lai examined him in 4 the orthopedic clinic, or should have prescribed some unspecified alternate courses of treatment, 5 including additional pain medication or diagnostic tests in addition to the MRI (Compl. at 3), his 6 claims sound in negligence and simply do not rise to the level of cruel and unusual punishment. 7 Estelle, 429 U.S. at 106. For it is well-settled that a difference of opinion between a physician 8 and a prisoner concerning the appropriate course of treatment does not amount to deliberate 9 indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Even when medical 10 officials disagree as to the proper course of treatment, as may have been the case with respect 11 to the final authorization of Plaintiff’s MRI, deliberate indifference is manifest only shown when 12 the prisoner pleads facts sufficient to show “the course of treatment the doctors chose was 13 medically unacceptable under the circumstances,” and that “they chose this course in conscious 14 disregard of an excessive risk to [the prisoner’s] health.” Id. at 332; see also Estelle, 429 U.S. 15 at 107 (“A medical decision not to order an x-ray, or like measures,” is a “classic example of a 16 matter for medical judgment” which by itself “does not represent cruel and unusual 17 punishment.”). 18 In sum, in order to state an Eighth Amendment deliberate indifference claim against Dr. 19 Lai, Plaintiff must do more than simply conclude Lai was “wanton” (Compl. at 3), or claim that 20 Lai “unlawfully harmed” him. Iqbal, 129 S. Ct. at 1949. Instead, Plaintiff must support this 21 conclusion with well-pleaded facts which plausibly suggest deliberate indifference on Dr. Lai’s 22 part. Id. at 1949-50; Moss, 572 F.3d at 969. This he has failed to do. Accordingly, Defendant Lai’s Motion to Dismiss Plaintiff’s Complaint pursuant to 23 24 FED.R.CIV.P. 12(b)(6) is GRANTED. 25 /// 26 /// 27 /// 28 /// K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 8 09cv0172 DMS (RBB) 1 IV. 2 CONCLUSION AND ORDER 3 4 5 6 Based on the foregoing, the Court hereby GRANTS Defendant Lai’s Motion to Dismiss Plaintiff’s Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 21]. IT IS SO ORDERED. DATED: December 9, 2009 7 HON. DANA M. SABRAW United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\DMS\09cv0172-Lai-MTD.wpd 9 09cv0172 DMS (RBB)
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