Opinion
2:22-cv-02742-GW (MAR)
05-27-2022
JACK LEROY CARROLL, Plaintiff, v. RALPH DIAZ, ET AL., Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On April 20, 2022, Jack Leroy Carroll (“Plaintiff”'), proceeding in forma pauperis (“IFP”) and pro se, constructively filed1 a Complaint (“Complaint”) against Ralph Diaz (“Diaz”), Secretary of the California Department of Corrections and Rehabilitation (“CDCR”); Gina Rasheed (“Rasheed”), a registered nurse for the CDCR; Michael Felder, MD (“Felder”), Chief Medical officer of the CDCR; and John Doe-One, MD, the treating physician and surgeon (collectively, “Defendants”). ECF Docket No. (“Dkt.”) 1 at 3-4. For the reasons discussed below, the Court dismisses the Complaint with leave to amend.
If Plaintiff desires to pursue this action, he is ORDERED to respond by no later than June 27, 2022, by choosing one (1) of the three (3) options discussed in Part V, below. Further, Plaintiff is admonished that, if he fails to timely respond, the Court may recommend that this action be dismissed without further leave to amend and with prejudice for failure to state a claim and follow the Court's orders.
II.
SUMMARY OF THE COMPLAINT
A. FACTUAL ALLEGATIONS
Plaintiff alleges that each defendant showed “deliberate indifference to a serious medical need” that resulted in significant injury to Plaintiff. Dkt. 1 at 8. On or around December 20, 2017, while detained at California State Prison, Los Angeles County, Plaintiff experienced severe pain in his right testicle, which was hard with lumps. Id. at 9. One week later, Plaintiff completed a CDC 7362 Health Care Service Request Form to seek medical care. Id. After completing this form, Plaintiff met with Defendant Rasheed, a registered nurse “who's job [it] is to block treatment.” Id. Plaintiff alleges that Defendant Rasheed minimized his concerns and dismissed the possibility of a testicular tumor. Id. When Plaintiff insisted on seeing a doctor, Defendant Rasheed was offended and allegedly retaliated by writing in Plaintiff s medical report that she observed no medical abnormalities. Id.
A few days later, Plaintiff was seen by a doctor, Defendant Doe-One. Id. After examining the Plaintiff and his medical record, Defendant Doe-One advised Plaintiff that he would not be ordering any further testing and opined that “not knowing the problem[] is sometimes better then [sic] the treatment.” Id. at 10. Plaintiff alleges that he suffered in pain for the next two years as the cancer spread to his abdomen. Id. However, it is not clear whether Plaintiff subsequently sought or received medical care after his visit with Defendant Doe-One.
On or around March 5, 2021, Plaintiff experienced extreme pain in his stomach and went “man-down, ” which resulted in him being rushed to a hospital outside of the prison. Id. Plaintiff was seen by a urologist who performed a feel-examination of 2 Plaintiff's testicles and exclaimed, “how long has this been like this?” Id. The urologist appeared to express shock at how long Plaintiff had gone without medical treatment and that his cancer was not identified earlier. See Id. The urologist advised that the mass on Plaintiff s testicle required urgent removal and, approximately four days later, Plaintiff underwent emergency surgery to remove his right testicle, which was rife with cancerous tumors. Id. at 11. Plaintiff alleges that, due to this surgery, he will never be able to have children or a family, and that this realisation caused him to suffer severe emotional trauma and a diminished quality of life. Id. Then, on April 19, 2021, Plaintiff underwent chemotherapy and was told that he was close to dying. Id. Plaintiff claims that his chemotherapy compromised his immune system, which rendered him especially vulnerable during the COVID-19 pandemic. Id. at 12.
Plaintiff claims that Defendant Diaz, the Secretary of the CDCR, and Defendant Felder, the CDCR's Chief Medical Officer, are using medicine to punish and disable prisoners. Id. at 11.
B. CLAIMS
Plaintiff brings the following two claims: 1) an Eighth Amendment claim alleging that Defendants were deliberately indifferent to his serious medical needs; and 2) a claim for medical negligence and malpractice under California law. Id. at 8.
C. RELIEF SOUGHT
Plaintiff seeks injunctive relief, in the form of proper medical diagnostic testing and treatment; general damages; special damages; punitive damages; and attorneys' fees and costs. Id. at 13.
III.
STANDARD OF REVIEW
Where a plaintiff proceeds in forma pauperis, a court must screen the complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
Dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989). Although the plaintiff must provide “more than labels and conclusions, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[s]pecific facts are not necessary; the [complaint] need only give the defendants] fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations and quotation marks omitted).
In considering whether a complaint states a claim, a court must accept as true all the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court must also construe the pleading in the light most favorable to the pleading party and resolve all doubts in the pleader's favor. See, e.g., Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). Pro se pleadings are “to be liberally construed” and are held to a less stringent standard than those drafted by a lawyer. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings; accordingly, we continue to construe pro se filings liberally when evaluating them under Iqbal.”).
IV.
DISCUSSION
A. PLAINTIFF FAILS TO STATE AN OFFICIAL CAPACITY CLAIM UNDER SECTION 1983
1. Applicable law
“The Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). The Eleventh Amendment also prohibits “suits naming state agencies and departments as defendants, ” regardless of whether the plaintiff “seek damages or injunctive relief.” Id. The Ninth Circuit has specifically held that CDCR is a state agency entitled to immunity under the Eleventh Amendment. Brown v. Cal. Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 2009); see also Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (finding a suit against a state's Board of Corrections is barred by the Eleventh Amendment); Stroman v. California Dep't of Corr. & Rehab., No. CV 14-524-WBS (CKD), 2014 WL 2208174, at *1 (E.D. Cal. May 28, 2014) (“In the context of prisoner lawsuits against CDCR, the Ninth Circuit has expressly and repeatedly held that CDCR is immune from suit under the Eleventh Amendment.”).
An “official capacity suit is, in all respects other than name, to be treated as a suit against the entity . . . [such a suit] is not a suit against the official personally, for the real party in interest is the entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations and internal quotation marks omitted); see also Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 966-67 (9th Cir. 2010) (an official capacity suit is treated as a suit against the entity). A plaintiff may seek monetary damages under section 1983 from state employees in their individual capacity. See Adler v. Lewis, 675 F.2d 1085, 1098 (9th Cir. 1982) (“State officials must be sued in their individual capacity in an action for monetary damages.”). However, because “a suit against a state official in his or her official capacity . . . is no different from a suit against the State itself, ” state officials sued in their official capacity, like the State itself, are generally entitled to immunity in a section 1983 action. Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (citation omitted).
2. Analysis
Here, Plaintiff is suing the Defendants in both their official and individual capacities. Dkt. 1 at 2-4. Thus, barring any applicable exception, Defendants, in their capacity as state officials, are entitled to immunity in this 1983 action. If Plaintiff elects to file a First Amended Complaint, he should either sue state employees in their individual capacity for damages or sue state employees in their official capacity for injunctive relief only.
Furthermore, Plaintiff's claims against Defendants Diaz and Felder appear to be based on a theory of respondeat superior liability. Dkt. 1 at 3, 9, 11. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, to be held liable, a supervising officer has to personally take some action against the plaintiff or “set in motion a series of acts by others . . . which he knew or reasonably should have known, would cause others to inflict the constitutional injury” on the plaintiff. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal quotations omitted). To the extent any of Plaintiff's claims are based on a theory of respondeat superior liability, they must be dismissed. See Mortimer v. Baca, 594 F.3d 714, 721 (9th Cir. 2010) (“There is no respondeat superior liability under § 1983.”).
B. PLAINTIFF FAILS TO STATE AN INADEQUATE MEDICAL CARE CLAIM UNDER THE EIGHTH AMENDMENT
1. Applicable law
Prison officials or private physicians under contract to treat state inmates “violate the Eighth Amendment if they are deliberately indifferent to a prisoner's serious medical needs.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (citation, internal quotation marks, and alterations omitted); Farmer v. Brennan, 511 U.S. 825, 828 (1994); West v. Atkins, 487 U.S. 42, 54 (1988). To assert a deliberate indifference claim, a prisoner plaintiff must show the defendant: (1) deprived him of an objectively serious medical need, and (2) acted with a subjectively culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297 (1991). “A medical need is serious if failure to treat it will result in significant injury or the unnecessary and wanton infliction of pain.” Peralta, 744 F.3d at 1081 (citations and internal quotation marks omitted).
“A prison official is deliberately indifferent to [a serious medical] need if he knows of and disregards an excessive risk to inmate health.” Id. at 1082 (citation and internal quotation marks omitted). This “requires more than ordinary lack of due care.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citations and internal quotation marks omitted). The “official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. (citation and internal quotation marks omitted).
“Deliberate indifference may appear when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (citation and internal quotation marks omitted). In either case, however, the indifference to the inmate's medical needs must be purposeful and substantial; negligence, inadvertence, or differences in medical judgment or opinion do not rise to the level of a constitutional violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted) cert. denied, 519 U.S. 1029 (1996); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (negligence constituting medical malpractice is not sufficient to establish an Eighth Amendment violation); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (“A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a” section 1983 claim.”). A plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson, 90 F.3d at 331.
2. Analysis
Here, Plaintiff alleges that CDCR medical personnel either delayed in providing or failed to provide Plaintiff with necessary medical care, which resulted in Plaintiff's testicular cancer going untreated for over two years, emergency surgery to remove cancerous tumors from Plaintiff's testicle, and subsequent infertility. Dkt. 1 at 8-11.
Although Plaintiff has partially described the type of care he was denied and his resulting injuries, Plaintiff has not shown that the lack of medical care exceeded mere negligence or a difference of opinion in care. Plaintiff alleges that Defendant Rasheed retaliated against Plaintiff by refusing to note in his medical record Plaintiff's complaints of testicular pain and abnormalities. Id. at 9. Yet, Plaintiff's allegations against the remaining Defendants do demonstrate a conscious disregard of an excessive risk to Plaintiff's health. See Jackson, 90 F.3d at 331. Moreover, Plaintiff's Complaint is largely devoid of specific factual allegations against Defendants Diaz and Felder. In other words, Plaintiff has not alleged facts as to each individual Defendant that could support an inference that the Defendants made a conscious choice to deny him care, despite the risk to Plaintiff's health.
If possible, any amended complaint should include additional details about Plaintiff's ailments at the time of the alleged violation and the specific conduct of the CDCR medical personnel, and the amended complaint should clearly restate relevant information from Plaintiff's initial Complaint.
C. PLAINTIFF FAILS TO STATE A RETALIATION CLAIM UNDER THE FIRST AMENDMENT
1. Applicable law
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. The First Amendment also guarantees the right “to petition the Government for a redress of grievances.” White v. Lee, 227 F.3d 1214, 1227 (9th Cir. 2000). “To state a First Amendment retaliation claim, a plaintiff must plausibly allege that (1) [s]he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (internal quotation marks omitted) (internal citations omitted).
Furthermore, to state a First Amendment retaliation claim, Plaintiffs do not need to show their “speech was actually inhibited or suppressed.” Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (quoting Mendocino Env'tl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)) (internal quotation marks omitted). Rather, courts look to “whether an officials' acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. at 916-17.
2. Analysis
Plaintiff alleges that Defendant Rasheed denied him adequate medical care in retaliation for his insistence on seeking a doctor, rather than a nurse. Dkt. 1 at 9. However, Plaintiff has not alleged any facts that could support a reasonable inference that his protected conduct was a motivating factor in the alleged denial of medical care; rather, Plaintiff merely makes a conclusory allegation that he believes the denial of medical care was retaliatory. Id. Without more, Plaintiff has failed to state a claim for retaliation.
V.
LEAVE TO FILE A FIRST AMENDED COMPLAINT
For the foregoing reasons, the Complaint is subject to dismissal. As the Court is unable to determine whether amendment would be futile, leave to amend is granted. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
Accordingly, IT IS ORDERED THAT by June 27, Plaintiff must choose one (1) of the following three (3) options:
1. Plaintiff may file an Amended Complaint to attempt to cure the deficiencies discussed above. The Clerk of Court is instructed to mail Plaintiff a blank Central District civil rights complaint form to use for filing an Amended Complaint, which the Court encourages Plaintiff to use. The Clerk of Court is also directed to mail Plaintiff a copy of the Complaint, Dkt. 1, for reference.
If Plaintiff chooses to file an Amended Complaint, Plaintiff is advised that doing so would entirely replace the Complaint in this action. In addition, any Amended Complaint must:
(a) be labeled “First Amended Complaint”;
(b) be complete in and of itself and not refer in any manner to prior complaints, i.e., it must include all the claims on which Plaintiff seeks to proceed, (see Local Rule 15-2);
(c) contain a “short plain” statement of the claim(s) for relief, see Fed.R.Civ.P. 8(a) and identify whether Plaintiff is suing each Defendant in their individual and/or official capacity;
(d) make each allegation “simple, concise and direct, ” Fed.R.Civ.P. 8(d)(1);
(e) make allegations in numbered paragraphs, “each limited as far as practicable to a single set of circumstances, ” Fed.R.Civ.P. 10(b);
(f) set forth clearly the sequence of events (including specific relevant dates) which allegedly gives rise to the claim(s) for relief, including what each
defendant did and how each specific defendant's conduct injured plaintiff; and
(g) not add defendants or claims without leave of court.
2. Alternatively, Plaintiff may file a notice with the Court that they intend to stand on the allegations in his Complaint. If Plaintiff chooses to stand on the Complaint despite the deficiencies in the claims identified above, then the Court will submit a recommendation to the assigned district judge that the Complaint be dismissed with prejudice for failure to state a claim, subject to Plaintiff's right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
3. Finally, Plaintiff may voluntarily dismiss the action without prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court encourages Plaintiff to use if they choose to voluntarily dismiss the action.
Plaintiff is explicitly cautioned that failure to timely file an Amended Complaint may result in this action being dismissed with prejudice for failure to state a claim, or for failure to prosecute and/or obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).
Matter Omitted