Opinion
CV 23-10917-JWH (AS)
04-17-2024
DARREN HARRIS, Plaintiff, v. GAVIN NEWSOM, et al., Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
ALKA SAGAR UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
On December 27, 2023, Darren Harris (“Plaintiff”), a California resident who is proceeding pro se and has been granted leave to proceed in forma pauperis, filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). On February 1, 2024, Plaintiff sought leave to amend his Complaint, which was granted on February 14, 2024. (Dkt. Nos. 8, 10). On April 3, 2024, Plaintiff filed a First Amended Complaint (or “FAC”). (Dkt. No. 13).
Plaintiff was a California state inmate when he signed the Complaint, but he was apparently released from custody on December 12, 2023, before the Complaint was postmarked and filed on the Court's docket. (See Dkt. No. 1 at 9; Dkt. No. 3; Dkt. No. 13 at 13).
The First Amended Complaint asserts that the following Defendants, sued in their individual and official capacities, violated Plaintiff's rights under the Eighth and Fourteenth Amendments by making, marketing, prescribing, or administering the anti-clotting drug Plavix without advising Plaintiff of its risks: (1) Dr. Arthur Fontaine; (2) Dr. Jeffrey Marino; (3) Dr. H. Cassim; (4) Bristol-Meyers Squibb Co. (“BMS”), manufacturer of Plavix; (5) Mercy Hospital of Bakersfield, California; (6) the California Department of Corrections and Rehabilitation (“CDCR”); (7) Dr. Shyi-Tang Shive; and (8) Dr. Antonia Chalmers. (FAC at 6-9).Liberally construed, the First Amended Complaint alleges that Plaintiff was given Plavix at Mercy Hospital in October 2005, after having suffered a major stroke while incarcerated at the state prison in Lancaster, California. (FAC at 2). Shortly after that, Plaintiff allegedly had blood in his urine, rectal bleeding, and gastrointestinal problems that “became excessive.” (FAC at 4). CDCR doctors told him these effects would wear off in time, according to Plaintiff, but the problems instead worsened each year until he suffered a second stroke in 2015. (FAC at 4). Plaintiff alleges that he “is still suffering from the injuries of Plavix.” (FAC at 4).
Citations to the First Amended Complaint refer to the page numbers assigned by the Court's Case Management/Electronic Case Filing (CM/ECF) system.
The Court has screened the First Amended Complaint as prescribed by 28 U.S.C. 1915(e)(2)(B). For the reasons discussed below, the Court DISMISSES Plaintiff's First Amended Complaint WITH LEAVE TO AMEND.
Magistrate judges may dismiss a complaint with leave to amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
STANDARD OF REVIEW
Congress mandates that district courts initially screen civil complaints filed by plaintiffs proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). A court may dismiss such a complaint, or any portion thereof, before service of process, if that court concludes that the complaint: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Dismissal for failure to state a claim is appropriate if a complaint fails to proffer “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). A plaintiff must provide “more than labels and conclusions” or a “formulaic recitation of the elements” of his claim. Twombly, 550 U.S. at 555. However, “[s]pecific facts are not necessary; the [complaint] need only give the defendant 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) (citation and alterations omitted).
In considering whether to dismiss a complaint, a court is generally limited to the pleadings and must construe “[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). Moreover, pro se pleadings are “to be liberally construed” and “held to less stringent standards” than those drafted by a lawyer. Erickson, 551 U.S. at 94 (citation omitted); see also 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.”) . Nevertheless, dismissal for failure to state a claim can be warranted based on either the lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
DISCUSSION
Plaintiff's First Amended Complaint warrants dismissal for failure to state a claim, among other deficiencies discussed below. Leave to amend is granted, however, because it is not “absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
A. The Non-Governmental Defendants Are Not Subject to Suit Under § 1983
To state a claim under § 1983, a plaintiff must allege that the deprivation of a right secured by the federal constitution or statutory law was committed by a person acting under color of state law. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “Section 1983 ‘excludes from its reach merely private conduct, no matter how discriminatory or wrong.'” Heineke v. Santa Clara Univ., 965 F.3d 1009, 1012 (9th Cir. 2020) (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999)). “Only in rare circumstances can a private party be viewed as a ‘state actor' for section 1983 purposes.” Sutton, 192 F.3d at 835 (quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). To sue private entities or individuals, there must be a “close nexus” between the state and the challenged conduct, Sutton, 192 F.3d at 836, such that the challenged conduct is “‘fairly attributable' to the state,” Belgau v. Inslee, 975 F.3d 940, 946 (9th Cir. 2020) (citation omitted).
Here, there is nothing to suggest that the alleged conduct of BMS, the pharmaceutical company that manufactures Plavix, was attributable to the state in any respect. Plaintiff's vague, conclusory assertion that BMS “joined in a partnership” with CDCR (FAC at 10) does not suffice. See Iqbal, 556 U.S. at 678. Otherwise, Plaintiff offers no facts to dispel the impression that BMS is simply a private company that markets and sells pharmaceutical drugs to consumers “nationwide” (FAC at 3), and that Plavix is prescribed and administered to many individuals in the general public. That it was also prescribed and administered to a state inmate such as Plaintiff does not render BMS a state actor.
Plaintiff also fails to allege that Defendant Mercy Hospital and the doctors it employs (Defendants Shive and Chalmers) are state actors. Although physicians who contract with prisons to provide health care to inmates may qualify as state actors, see, e.g., West v. Atkins, 487 U.S. 42, 51-54 (1988); George v. Sonoma Cty. Sheriff's Dep't, 732 F.Supp.2d 922, 934 (N.D. Cal. 2010), “private doctors, nurses, and hospitals who have not assumed the state's obligation to provide medical care to inmates[] are not state actors just because they provide one-off medical treatment to an inmate,” Calloway v. Cal. Dep't of Corr. & Rehab., 2021 WL 2366037, at *4 (E.D. Cal. June 9, 2021) (citing West, 487 U.S. at 51-54; Felix v. Casey, 2021 WL 2209828, at *2 (E.D. Cal. June 1, 2021); Probst v. Adams Cty. Sheriff's Dep't, 2021 WL 1554064, at *3 (D. Idaho Apr. 19, 2021)). Here, Plaintiff alleges that he was a state prison inmate when he suffered a stroke and was “rushed to Mercy Hospital” for treatment (FAC at 2), but he offers no clear allegations showing that Mercy Hospital and its doctors provided such treatment pursuant to a contract with the state. Instead, he makes only a vague, conclusory assertion that all named Defendants were “in joint partnership contractually associated in cooperation to deprive Plaintiff of rights under color of law ....” (FAC at 11). As noted above, such allegations do not suffice. See Iqbal, 556 U.S. at 678.
Accordingly, Plaintiff fails to state a § 1983 claim against BMS, Mercy Hospital, and Drs. Shive and Chalmers.
B. The CDCR Is Not Subject to Suit Under § 1983
“States are protected by the Eleventh Amendment from suits brought by citizens in federal court.” Douglas v. California Dep't of Youth Auth., 271 F.3d 812, 817 (9th Cir.), amended, 271 F.3d 910 (9th Cir. 2001). Although Eleventh Amendment sovereign immunity may be abrogated by Congress or waived by states, In re Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999), Congress did not do so with respect to § 1983, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of California has not waived its immunity with respect to claims brought against it in federal court, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). Accordingly, Plaintiff is “plainly barred by the Eleventh Amendment from suing the State of California in federal court.” Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013). The CDCR, as an agency of the State of California, likewise is immune from being sued. See Cal. Gov't Code § 900.6 (agencies included in meaning of “State”).
C. Plaintiff Cannot Sue Defendants in Their Official Capacities
Plaintiff lists all Defendants in both their individual and official capacities. (FAC at 6-9). To the extent that Plaintiff purports to sue private entities or individuals (BMS, Mercy Hospital, and Mercy employees) in their official capacity, such claims are meaningless and/or redundant and subject to dismissal as such. See, e.g., Ellibee v. Leonard, 226 Fed.Appx. 351, 357 (5th Cir. 2007) (employees of private companies “had no official capacities in which they could be sued”); Groom v. Safeway, Inc., 973 F.Supp. 987, 992 n.5 (W.D. Wash. 1997) (“It would seem clear that Safeway, as a private employer, has no ‘official'-capacity . . . ."); Nouchet v. Mandalay Corp., 2017 WL 985648, at *2-3 (D. Nev. 2017) (noting that courts “have declined to extend official capacity suits to cases involving private employers,” and that, in any event, claims against private sector supervisors in their official capacities can be dismissed as duplicative because they are the functional equivalent of claims against the actual employer); Beck v. FedEx Ground, 2007 WL 2028581, at *2 (E.D. Cal. July 10, 2007) (“The concept of ‘official and/or agency capacity' makes no sense whatsoever in the context of [private employers].”); DeRay v. Larson, 283 F.Supp.2d 706, 709-10 (D. Conn. 2003) (“[I]t is unnecessary to allow a claim against a defendant in his or her official capacity when the entity of which he is an official is capable of being sued directly.”).
As for Plaintiff's claims against CDCR Defendants (Drs. Fontaine, Marino, Cassim), an official capacity suit against a public employee is equivalent to a suit against the public entity employer, Kentucky v. Graham, 473 U.S. 159, 166 (1985); Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013), which in this case is a California state agency (CDCR), Holley v. Cal. Dep't of Corrs., 599 F.3d 1108, 1111 (9th Cir. 2010); Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009). The Eleventh Amendment bars federal court damages actions against a state official in his or her official capacity where, like here, the state has not waived its immunity and Congress has not overridden that immunity. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Graham, 473 U.S. at 169-70; Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). Plaintiff therefore cannot assert claims for damages against Defendants in their official capacities.
Under Ex parte Young, official-capacity claims for prospective injunctive relief are permitted where appropriate. See Doe v. Lawrence Livermore Nat. Lab'y, 131 F.3d 836, 839 (9th Cir. 1997) (“In what has become known as part of the Ex parte Young doctrine, a suit for prospective injunctive relief provides a narrow, but well-established, exception to Eleventh Amendment immunity.” (citing Ex parte Young, 209 U.S. 123 (1908))). However, prospective injunctive relief is generally unavailable unless the inmate continues to be subjected to the alleged violation or if such harm “can reasonably be expected to recur.” See Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)
(“A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”); R. W. v. Columbia Basin Coll., 77 F.4th 1214, 1221 (9th Cir. 2023) (“For a suit to proceed under Ex parte Young, the plaintiff must allege . . . an ongoing violation of federal law for which she seeks prospective injunctive relief.” (citation omitted)). Here, although Plaintiff alleges that he continues to suffer from injuries as a result of his past treatment with Plavix, he does not allege that he is still being subjected to the asserted violations themselves - i . e ., the Plavix misinformation and treatment - or that such conduct is likely to recur. Prospective injunctive relief is therefore unavailable.
Accordingly, Plaintiff cannot state claims against any Defendants in their official capacities.
D. Plaintiff Fails to State a Claim Against the Individual Defendants
Liberally construed, the First Amended Complaint asserts that Defendants violated Plaintiff's Eighth Amendment right to be free from deliberate indifference to serious medical needs and his Fourteenth Amendment due process right to make informed decisions to accept or reject medical treatment. (See FAC at 6-10). These claims fail for the reasons stated below.
To the extent Plaintiff also intends to assert state law claims for “medical malpractice” or “personal injury” (see FAC at 7), the Court need not address such claims because, in the absence of a viable federal claim, it would be appropriate to decline to exercise supplemental jurisdiction over such claims. 28 U.S.C. § 1367(c); Velazquez v. City of Long Beach, 793 F.3d 1010, 1029 (9th Cir. 2015) (district court may decline to exercise supplemental jurisdiction over claim if it has dismissed all claims over which it has original jurisdiction).
1. Deliberate Indifference (Eighth Amendment)
The Eighth Amendment protects inmates from deliberate indifference to their serious medical needs. To establish a deliberate indifference claim, a prisoner must show (1) that the deprivation suffered was “objectively, sufficiently serious” and (2) that prison officials were deliberately indifferent to his safety in allowing the deprivation to take place. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). “[P]laintiffs alleging deliberate indifference must also demonstrate that the defendants' actions were both an actual and proximate cause of their injuries.” Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). A plaintiff can satisfy the subjective component of the deliberate indifference standard by showing that a prison official “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). A prison 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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
This standard requires more than “mere malpractice, or even gross negligence.” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); see also Farmer, 411 U.S. at 835 (deliberate indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for the prisoner's interests or safety'” (quoting Whitley v. Alberts, 475 U.S. 312, 319 (1986))). In addition, “a difference of opinion between a physician and the prisoner - or between medical professionals - concerning what medical care is appropriate does not amount to deliberate indifference.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citation omitted). Where a physician defendant opts for one course of treatment over another, or for no affirmative treatment at all, the plaintiff must show that the option the physician chose was medically unacceptable under the circumstances, and that the physician chose it in conscious disregard of an excessive risk to the plaintiff's health. Toguchi, 391 F.3d at 1058.
Moreover, where, as here, a plaintiff seeks to hold individual officers personally liable for damages, the plaintiff must establish “individual fault” for such defendants. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (citations omitted); see also, e.g., Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D. Cal. 2004) (plaintiff “must establish individual fault . . . as to each individual defendant's deliberate indifference.” (citing Leer, 844 F.2d at 634)). To do so, a plaintiff must allege facts showing an affirmative link between a defendant's particular actions and the specific constitutional deprivation alleged. “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer, 844 F.2d at 633-34 (citing, in part, Rizzo v. Goode, 423 U.S. 362, 370-71, 375-77 (1976)).
Here, Plaintiff alleges the following regarding his medical treatment after suffering a stroke in October 2005:
[Plaintiff] was immediately rushed to Mercy Hospital . . . where [D]efendant(s) doctors allegedly failed to inform and advise [P]laintiff of the dangerous and deadly side effects of Plavix and disregarded that risk of harm and injury [when they] did prescribe Plavix for [P]laintiff and administered Plavix . . . intravenously and instructed Plaintiff to ingest Plavix in pill form. [¶] Shortly thereafter Plaintiff noticed [b]lood in his urin[e] and rectal bleed and gastrointestinal problems that became excessive. He reported this incident to CDCR doctors who told [Plaintiff] that the effects will wear off in time[.] [T]hat was false statement because each year the problem got worse and worse until plaintiff suffered a second stroke in 2015. [¶] 18 years later [sic] Plaintiff is still suffering from the injuries of Plavix and seeks this court to resolve the matter.(FAC at 2, 4). Plaintiff provides no other facts about the circumstances of his treatment or injuries. He does not specify when each Defendant doctor treated him, what Plaintiff's condition was at that respective time, or what each Defendant knew at that time about Plaintiff's condition and the effects of Plavix. Moreover, though Plaintiff asserts that when “CDCR doctors” told him the harmful effects would “wear off in time,” this was a “false statement,” there are no facts suggesting that any Defendants actually knew this was false at the time. Without additional facts about the circumstances of his treatment, Plaintiff fails to demonstrate an Eighth Amendment violation by any individual Defendant.
Some of the pages setting forth Plaintiff's allegations appear to have been docketed in the wrong sequence.
2. Due Process (Fourteenth Amendment)
“The due process clause of the Fourteenth Amendment substantively protects a person's rights to be free from unjustified intrusions to the body, to refuse unwanted medical treatment and to receive sufficient information to exercise these rights intelligently.” Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 2002) (citing Riggins v. Nevada, 504 U.S. 127, 134 (1992); White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 1990)); see also White, 897 F.2d at 113 (“Prisoners have a right to such information as is reasonably necessary to make an informed decision to accept or reject proposed [medical] treatment, as well as a reasonable explanation of the viable alternative treatments that can be made available in a prison setting.”); Knight v. Grossman, 942 F.3d 336, 342 (7th Cir. 2019) (“[P]risoners have a Fourteenth Amendment right to informed consent. The right to refuse medical treatment carries with it an implied right to the information necessary to make an informed decision about whether to refuse the treatment.”); Pabon v. Wright, 459 F.3d 241, 249-50 (2d Cir. 2006) ("[I]n order to permit prisoners to exercise their right to refuse unwanted treatment, there exists a liberty interest in receiving such information as a reasonable patient would require in order to make an informed decision as to whether to accept or reject proposed medical treatment.” (citing White, 897 F.2d at 113)).
As indicated above, Plaintiff provides only general allegations about Defendants' use of Plavix to treat him. He asserts that the "[D]efendant doctor[s]” did not "inform and advise [P]laintiff of the dangerous and deadly side effects of Plavix and disregarded that risk of harm and injury” when they prescribed and administered the drug to him, but he does not allege any facts suggesting that any of these Defendants knew Plavix posed any particular dangerous risks that they neglected to disclose. See Ramirez v. Johnson, 2020 WL 5027391, at *12 (C.D. Cal. July 24, 2020) ("[M]ere inadvertent failure to impart medical information cannot form the basis of a constitutional [due process] violation. Rather, the medical staff must show deliberate indifference to the prisoner's right to give informed consent or refuse treatment.” (citing Pabon, 459 F.3d at 250-51)), report and recommendation, 2020 WL 5898798 (C.D. Cal. Sept. 11, 2020). Indeed, Plaintiff does not indicate what information, if any, he was provided about Plavix; or when, how, and by whom such information was provided. Absent such facts, among others, Plaintiff fails to demonstrate that any Defendant actually deprived him of his constitutional due process right to “sufficient information” to make an informed decision regarding his Plavix treatment.
Accordingly, the First Amended Complaint fails to state a claim for relief.
The Court notes that Plaintiff's claims may also be barred by the applicable two-year statute of limitations, given that the alleged harms occurred between 2005 and, at the latest, 2015. See Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir. 2019) (§ 1983 actions in federal courts located in California are governed by California's two-year statute of limitations for personal injury actions). However, as additional facts may be needed to ascertain when Plaintiff's claims accrued and whether he may be entitled to statutory or equitable tolling, this is not a basis for dismissal at this time.
CONCLUSION
For the reasons discussed above, the Court DISMISSES Plaintiff's claims WITH LEAVE TO AMEND.
If Plaintiff still wishes to pursue this action, he shall file a Second Amended Complaint no later than 30 days from the date of this Order. The Second Amended Complaint must cure the pleading defects discussed above and shall be complete in itself without reference to the Complaint. See L.R. 15-2 (“Every amended pleading filed as a matter of right or allowed by order of the Court shall be complete including exhibits. The amended pleading shall not refer to the prior, superseding pleading.”). This means that Plaintiff must allege and plead any viable claims again.
In any amended complaint, Plaintiff should identify the nature of each separate legal claim and confine his allegations to those operative facts supporting each of his claims. For each separate legal claim, Plaintiff should state the civil right that has been violated and the supporting facts for that claim only. Pursuant to Federal Rule of Civil Procedure 8(a), all that is required is a “short and plain statement of the claim showing that the pleader is entitled to relief.” However, Plaintiff is advised that the allegations in the Second Amended Complaint should be consistent with the authorities discussed above. In addition, the Second Amended Complaint may not include new defendants or claims not reasonably related to the allegations in the previously filed 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 explicitly cautioned that failure to timely file a Second Amended Complaint, or failure to correct the deficiencies described above, may result in a recommendation that this action, or portions thereof, be dismissed with prejudice for failure to prosecute and/or failure to comply with court orders. See Fed.R.Civ.P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (“The failure of the plaintiff eventually to respond to the court's ultimatum - either by amending the complaint or by indicating to the court that it will not do so - is properly met with the sanction of a Rule 41(b) dismissal.” (emphasis omitted) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004))). Plaintiff is further advised that if he no longer wishes to pursue this action in its entirety or with respect to particular defendants or claims, he may voluntarily dismiss all or any part of this action 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 Plaintiff's convenience.
IT IS SO ORDERED.