-GWF Clemons v. Hayes et al, No. 2:2010cv01163 - Document 37 (D. Nev. 2011)
Court Description: ORDER Granting 18 Motion to Dismiss with prejudice. Signed by Judge Kent J. Dawson on 7/25/2011. (Copies have been distributed pursuant to the NEF - SLR)
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-GWF Clemons v. Hayes et al Doc. 37 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 De’MARIAN CLEMONS, 11 Plaintiff, 12 v. 13 Case No. 2:10-cv-01163-KJD-PAL ROBERT CLINTON HAYES, M.D.; GABLE, M.D.; NAPHCARE; and ELIZABETH L. ACEVEDO, 14 15 ORDER Defendant/ Respondent. 16 17 Presently before the Court is Defendant Elizabeth L. Acevedo’s Motion to Dismiss (#18). 18 Plaintiff filed a Response in opposition (#23) to which Defendant replied (#27). 19 I. Procedural History 20 On October 27, 2010, Plaintiff De’Marian Clemons (“Clemons”) filed the present Complaint 21 (#5) against health care professionals at the prison where Clemons was incarcerated. Three counts of 22 the Complaint contain claims against a nurse at the prison, Defendant Elizabeth L. Acevedo 23 (“Acevedo”): Count VII, Count VIII, and Count IX. On October 27, 2010, the Court dismissed 24 Counts VIII and IX in their entirety (#4). Clemons’ only remaining claims against Acevedo are 25 within Count VII. Therein, Clemons asserts that Acevedo was negligent and violated his physician- 26 Dockets.Justia.com 1 patient privilege and his Eighth Amendment rights. Acevedo has moved to dismiss all remaining 2 claims against her, including Clemons’ request for injunction. 3 II. Motion to Dismiss 4 Pursuant to Fed. R. Civ. P. 12(b)(6), a court may dismiss a plaintiff’s complaint for “failure 5 to state a claim upon which relief can be granted.” A properly pled complaint must provide “a short 6 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 7 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require 8 detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation 9 of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Papasan 10 v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the 11 speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint 12 must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 13 129 S. Ct. at 1949 (internal citation omitted). 14 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when 15 considering motions to dismiss. First, the Court must accept as true all well-pled factual allegations 16 in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. 17 Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not 18 suffice. Id. at 1949. Second, the Court must consider whether the factual allegations in the 19 complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the 20 plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the 21 defendant is liable for the alleged misconduct. Id. at 1949. Where the complaint does not permit the 22 court to infer more than the mere possibility of misconduct, the complaint has “alleged—but not 23 shown—that the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the 24 claims in a complaint have not crossed the line from conceivable to plausible, plaintiff’s complaint 25 must be dismissed. Twombly, 550 U.S. at 570. 26 /// 2 1 A. Negligence 2 Acevedo asserts that this claim should be dismissed because Clemons did not file an affidavit 3 supporting his allegations as required under NRS 41.071. Pro se litigants are not held to the same 4 standard as admitted or bar licensed attorneys. Haines v. Kerner, 404 U.S. 519, 521 (1972). 5 Pleadings by pro se litigants, regardless of deficiencies, should only be judged by function, not form. 6 Id. Therefore, Clemons’ failure to attach an affidavit to his Complaint is inconsequential and not 7 grounds for dismissal. 8 9 Clemons’ negligence claim is governed by NRS 41A.015 because it is undisputed that Nurse Acevedo is a provider of healthcare. Under NRS 41A.015, “‘Professional negligence’ means a 10 negligent act or omission to act by a provider of health care in the rendering of professional services, 11 which act or omission is the proximate cause of a personal injury or wrongful death.” See, e.g., Fierle 12 v. Perez, 219 P.3d 906, 911 (Nev. 2008). 13 Clemons bases his negligence claim on three allegations against Acevedo. First, he alleges 14 that one night after he fell while using the bathroom, Nurse Acevedo recommended to the attending 15 guard that Clemons be allowed to get some fresh air and told the guard that Clemons would be fine 16 because she had checked his blood pressure earlier. Second, he alleges that the day after his fall he 17 approached Nurse Acevedo while she was dispensing pills to inmates and he asked her for some 18 Tylenol, but she declined. Third, he alleges that a few weeks later while Nurse Acevedo was 19 dispensing pills, he approached her and asked her to check his blood pressure. She told him she 20 would check his blood pressure when she was done with other inmates, however Acevedo did not 21 check his blood pressure because Clemons chose to leave and go back to his room. A few hours later 22 another nurse checked his blood pressure instead. Clemons argues that Acevedo was negligent 23 because she should have checked his vitals, temperature, and blood pressure, “just in case he passed 24 out.” He claims to now suffer from headaches. 25 26 Here, Clemons does not allege that Acevedo’s recommendation that he get some fresh air after his fall, her decision not to give him Tylenol on one occasion, or her request that he wait until 3 1 she checked other inmates before she checked his blood pressure caused him any injury. Rather, he 2 argues that she should have acted differently because he may have passed out. Because he does not 3 allege facts that support a claim that Acevedo caused him harm, Clemons has failed to state a claim 4 for which relief can be granted. Accordingly, the negligence claims against Acevedo are dismissed. 5 B. Physician-Patient Privilege 6 Clemons asserts that Acevedo violated the physician-patient privilege. Clemons does not 7 specify under which law he is bringing his claim, but the relevant Nevada statute is NRS 49.225, 8 which states: 9 10 A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among the patient, the patient’s doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient’s family. 11 Here, Clemons has not mentioned any confidential communications which Acevedo may have 12 disclosed nor any confidential communications between him and Acevedo in general. Therefore, 13 Clemons has failed to state a claim for which relief can be granted under NRS 49.225. 14 If Clemons is attempting to state a federal claim under the Health Insurance Portability and 15 Accountability Act or 1996 (“HIPPA”), it must be dismissed because “HIPPA itself provides no 16 private right of action.” Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010). Accordingly, the 17 physician-patient privilege claims against Acevedo are dismissed. 18 C. Eight Amendment 19 Clemons asserts that Acevedo violated his Eight Amendment rights based on the same facts 20 he relies upon for his negligence claim. 21 In order for an inmate to support a claim under 42 U.S.C. §1983 against individual medical 22 providers, he must demonstrate “deliberate indifference” on the part of medical personnel. Estelle v. 23 Gambler, 429 U.S. 97, 104 (1976). Deliberate indifference is defined as the “unnecessary and 24 wanton infliction of pain.” Id. “In the medical context, an inadvertent failure to provide medical care 25 cannot be said to constitute an ‘unnecessary and wanton infliction of pain’ or to be ‘repugnant to the 26 4 1 conscience of mankind.’” Id. at 105-106; Wilson v. Seiter, 501 U.S. 294 (1991). The test for 2 deliberate indifference is: (1) that the indifference could result in further significant injury; and (2) 3 that there was a purposeful act or failure to respond to prisoner’s pain or medical need which resulted 4 in harm. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “[I]n order to prove a claim of 5 deliberate indifference to a serious medical need based on an alleged delay or interference with 6 medical treatment, a prisoner must show that he suffered substantial harm by the delay.” Turner v. 7 County of Washoe, 759 F.Supp 630 (D. Nev. 1991). 8 Here, just as with his negligence claim, Clemons fails to allege any harm caused by Acevedo. 9 Clemons makes no allegations suggesting that some harm could have been prevented had Nurse 10 Acevedo acted the way Clemons wanted her to, as opposed to completing her duty of attending to 11 other inmates who waited in line. Additionally, Clemons admits that Acevedo, along with the rest of 12 the prison’s medical staff, regularly and frequently attended to many of his more serious health 13 complaints. Clemons has failed to state a claim for which relief can be granted. Accordingly, the 14 Eighth Amendment claims against Acevedo are dismissed. 15 16 III. Request for Injunction Clemons’ prayer requests injunctive relief requiring Defendants to provide proper medical 17 treatment. Clemons has since been transferred to another prison facility at which Nurse Acevedo 18 does not work. A case is moot when the issues presented are no longer “live” or the parties lack a 19 legally cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969). Since 20 Clemons is no longer confined at the prison where Acevedo works, his request for an injunction is 21 moot and cannot be granted. 22 IV. Prejudice 23 When there are no facts which can be proven under amendment to the pleadings that will 24 constitute a sufficient claim, an amendment would be futile and the claims should be dismissed with 25 prejudice. See Miller v. Rykoff-Sexton Inc., 845 F.2d 209, 214 (9th Cir. 1988). Here, Clemons does 26 not allege any facts that support a claim that Acevedo caused him harm and further, he has provided 5 1 no facts whatsoever that indicate the plausibility of a physician-patient privilege claim. Accordingly, 2 the Court finds that any amendment to the claims against Acevedo would be futile. 3 4 IV. Conclusion Accordingly, IT IS HEREBY ORDERED that Defendant Elizabeth L. Acevedo’s Motion to 5 Dismiss (#18) is GRANTED with prejudice; DATED this 25th day of July 2011. 6 7 8 9 10 _____________________________ Kent J. Dawson United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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