Dorsey v. Paramo

• Court: District Court, S.D. California
• Decided: June 29, 2021
• Docket: 3:20-cv-00843
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESSIE DORSEY, Case No.: 3:20-cv-00843-JAH-LL CDCR #AF-6022, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING CLAIMS AND 14 DEFENDANTS PURSUANT TO 28

15 U.S.C. SECTION 1915(e)(2) AND 28 S. ROBERTS; R.B. CHAM; D. BATES; U.S.C. SECTION 1915A(b); 16 M. GARIKAPARTHI; P. SHAKIBA; G.

CASIAN; V. SILVA; J. BATES, 17 AND Defendants. 18 (2) DIRECTING U.S. MARSHAL TO 19 EFFECT SERVICE UPON DEFENDANT SHAKIBA PURSUANT 20 TO 28 U.S.C. SECTION 1915(d) AND 21 FED. R. CIV. P. 4(c)(3)

23 24 Plaintiff Jessie Dorsey, currently incarcerated at the Richard J. Donovan 25 Correctional Facility (“RJD”), is proceeding pro se and in forma pauperis (“IFP”) in this 26 civil rights action pursuant to 42 U.S.C. Section 1983. (See ECF No. 7, at 10.) 27 The Court previously dismissed Plaintiff’s initial Complaint, ECF No. 1, for failure 28 to state a claim upon which relief may be granted pursuant to 28 U.S.C. Section 1 1915(e)(2)(B) and 28 U.S.C. Section 1915A(b) and granted leave to amend. (See ECF No. 2 7, at 11.) Plaintiff timely filed a First Amended Complaint. (See ECF No. 10, FAC.) 3 I. Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b) 4 A. Standard of Review 5 Because Plaintiff is a prisoner and is proceeding IFP, his First Amended Complaint 6 requires a pre-answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 7 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 8 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 9 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 10 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 11 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The 12 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 13 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 14 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 15 2012)). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 18 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 20 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 21 standard applied in the context of failure to state a claim under Federal Rule of Civil 22 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 23 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 24 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 25 1121. 26 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 27 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 28 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 1 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 2 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 3 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 4 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 5 B. Plaintiff’s Factual Allegations 6 Plaintiff’s claims focus on the allegedly deficient course of medical treatment he 7 received for knee and ankle problems between 2012 and 2019. (See FAC at 2.) Although 8 the sequence of events is somewhat unclear, for most of that period, Plaintiff’s care focused 9 on “conservative measures,” including steroid injections, which gave Plaintiff only 10 temporary relief from his chronic pain and reduced mobility. (See id. at 3.) According to 11 Plaintiff, “[t]hese ‘conservative measures’ were seemingly based on witchcraft 12 medincintry [sic] and fin[ancial] conservation.” (See id.) 13 In early 2013, Plaintiff was admitted to “Alvarado Hospital Medical Center LLC” 14 for a surgical procedure, an arthroscopic meniscectomy, which was performed by 15 Defendant Dr. Roman Cham. (See id. at 2-3.) After the surgery, Plaintiff received care 16 from Defendant Dr. Darryl Bates, who allegedly used conservative and “superficial” 17 measures that “did nothing to [alleviate] . . . [P]laintiff’s pain and suffering,” and that after 18 the procedure he did not receive accommodations. (See id. at 3.) Plaintiff also alleges that 19 Defendant D. Bates “could not perform his duty,” noting a “‘lack of time.’” (See id.) 20 By the end of 2014, after two years of symptoms, Plaintiff received 21 accommodations, presumably for his reduced mobility. (See id. at 3-4.) Plaintiff does not 22 describe those accommodations, but states that “[t]he level of treatment provided by RJD 23 Defendants does not meet the bar of ‘equal and fair’ by any standards,” and contends that 24 he was subjected to cruel and unusual punishment on account of “‘conservatism and lack 25 of time’ among other constitutional violations.” (Id. at 4 (internal quotation marks in 26 original).) 27 Much of the First Amended Complaint focuses on the conduct of Plaintiff’s four 28 primary care physicians, Defendants Dr. M. Garikaparthi, Dr. P. Shakiba, Dr. G. Casian, 1 and Dr. J. Silva. Defendant Garikaparthi allegedly diagnosed Plaintiff with knee and ankle 2 problems and ordered certain accommodations, but allegedly “did absolutely nothing to 3 relief [Plaintiff’s] chronic pain . . . .” (See id.) Although Plaintiff pursued a variety of 4 treatments suggested by Defendant Garikaparthi, his condition continued to worsen. (See 5 id. at 4-5.) After Defendant Shakiba became Plaintiff’s primary care physician, he 6 reviewed the results of an MRI “approved . . . by [Defendant] S. Roberts M.D..” which 7 showed certain knee conditions, and recommended another knee surgery. (See id. at 5.) 8 Despite that recommendation, Defendant Shakiba allegedly “cancelled follow-up 9 appointments, and refused to see [Plaintiff] to discuss new develop[]ments with his right 10 knee,” and “ignored the complaints and pain reduction request [sic] submitted by [Plaintiff] 11 as per RJD policy.” (See id.) Plaintiff’s care was allegedly delayed as a result, and he 12 developed additional complications, including pain in his other knee. (See id.) 13 Subsequently, Defendant Casian became Plaintiff’s primary care physician. (See id. 14 at 7.) Plaintiff alleges that Casian failed “to adequately treat the Plaintiff and to provide 15 medication that would relieve . . . his . . . chronic pain,” and “ignored the facts and 16 continued to delay tests based on cost,” causing Plaintiff’s condition to worsen and 17 increasing his pain. (See id.) Plaintiff makes similar allegations against Defendant Silva, 18 who also served as Plaintiff’s primary care physician. (See id. at 8.) According to Plaintiff, 19 Silva found that Plaintiff’s conditions were serious, but “did little or next to nothing to 20 address and to treat the underlying problem,” and that his involvement in Plaintiff’s care 21 “did not improve the Plaintiff’s condition, but in fact added to the ongoing constitutional 22 violations . . . .” (Id.) 23 In mid-2018, Plaintiff’s surgeon, Defendant Cham, was again recommending 24 surgery, noting after a conference that Plaintiff “‘will not probably benefit from any 25 surg[e]ry that is less than a total knee replacement.’” (Id. at 9 (quoting medical records).) 26 After receiving a second opinion, Plaintiff agreed to undergo surgery, including a right 27 knee replacement. (See id.at 9.) The procedure was performed by Defendant Dr. J. Bates 28 on May 8, 2019. (Id.) Although the knee replacement seems to have temporarily helped 1 Plaintiff, by July 4, 2019 he was again experiencing “right knee locking, buckling, and 2 pain.” (See id.) Those symptoms have continued since then despite Plaintiff completing 3 physical therapy and recommended workouts. (See id.) 4 Plaintiff alleges that Defendants are liable in their official capacities for violating his 5 Eighth Amendment right to adequate medical care and seeks compensatory and punitive 6 damages in an unspecified amount. (See id. at 10.) 7 C. Analysis 8 As an initial matter, Plaintiff’s claims against Defendants in their official capacities 9 must be dismissed. The Eleventh Amendment bars official capacity damages claims 10 brought under Section 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 11 (1989); Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). As a result, Plaintiff’s official 12 capacity claims must be dismissed sua sponte for failure to state a claim. See Will, 491 13 U.S. at 71; Graham, 473 U.S. at 169; see also 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 14 1915A(b)(1). The Court nevertheless liberally construes Plaintiff’s First Amended 15 Complaint as alleging identical claims against Defendants in their individual capacities, 16 and as a result will analyze the substance of Plaintiff’s claims. See Watison, 668 F.3d at 17 1112 (explaining that pro se complaints must be liberally construed). 18 The Eighth Amendment requires that inmates have “ready access to adequate 19 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate 20 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle 21 v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference ‘may appear when prison 22 officials deny, delay or intentionally interfere with medical treatment, or it may be shown 23 in the way in which prison physicians provide medical care.’” Colwell v. Bannister, 763 24 F.3d 1060, 1066 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 25 (9th Cir. 1988)). “A prison official acts with ‘deliberate indifference . . . only if the [prison 26 official] knows of and disregards an excessive risk to inmate health and safety.’” Toguchi 27 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 28 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los 1 Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, the prison official 2 must not only ‘be aware of facts from which the inference could be drawn that a substantial 3 risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting 4 Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Inadvertent failures to provide adequate 5 medical care, mere negligence or medical malpractice, delays in providing care (without 6 more), and differences of opinion over what medical treatment or course of care is proper, 7 are all insufficient to constitute an Eighth Amendment violation.” Norvell v. Roberts, No. 8 20-cv-0512 JLS (NLS), 2020 WL 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 9 429 U.S. at 105-07; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. Nev. 10 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 11 The Court finds that as to Defendant Shakiba, Plaintiff’s First Amended Complaint 12 contains a plausible claim of deliberate indifference to serious medical needs sufficient to 13 surpass the “low threshold” set for sua sponte screening required by 28 U.S.C. Sections 14 1915(e)(2) and 1915A(b). See Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1123; see also 15 Estelle, 429 U.S. at 104 (“[D]eliberate indifference to serious medical needs of prisoners” 16 violates the Eighth Amendment); Colwell, 763 F.3d at 1066. Plaintiff’s allegation that 17 Defendant Shakiba intentionally delayed medical care and that Plaintiff developed 18 complications as a result is sufficient at this stage to state a claim. See Gray v. Hernandez, 19 651 F. Supp. 2d 1167, 1185 (S.D. Cal. 2009) (explaining that delays in treatment “must 20 cause substantial harm” in order to violate the Eighth Amendment (citing Wood v. 21 Housewright, 900 F.2d 1332 (9th Cir. 1990))). Nevertheless, the Court cautions Plaintiff 22 that the sua sponte screening process is “cumulative of, not a substitute for, any subsequent 23 [motion to dismiss] that the defendant may choose to bring.” See Teahan v. Wilhelm, 481 24 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 25 Plaintiff’s claims against Defendants Roberts, Cham, D. Bates, J. Bates, 26 Garikaparthi, Casian, and Silva must be dismissed for failure to state a claim upon which 27 relief may be granted. As the Court explained in its Order dismissing Plaintiff’s initial 28 Complaint, “[a]t best Plaintiff alleges that the treatment performed by these Defendants 1 failed to remedy his underlying conditions.” See ECF No. 7, at 9. “[A] prison official does 2 not exhibit deliberate indifference to a serious medical need simply because she prescribes 3 a course of treatment that proves ineffective.” Nicholson v. Finander, No. CV 12-9993- 4 FMO (JEM), 2014 WL 8095187, at *9 (C.D. Cal. Oct. 24, 2014), report & 5 recommendation adopted 2015 WL 1006551 (C.D. Cal. Mar. 5, 2015). Although Plaintiff 6 clearly disagrees with the remaining Defendants’ decisions to use what he refers to as 7 “conservative measures” to address Plaintiff’s knee and ankle conditions, “to prevail on a 8 claim involving choices between alternative courses of treatment, a prisoner must show 9 that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ 10 and was chosen ‘in conscious disregard of an excessive risk to [the prisoner’s] health.’” 11 Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 12 Plaintiff has not plausibly alleged that the plan of treatment chosen by the remaining 13 Defendants was medically unacceptable or that it was chosen in “conscious disregard” to 14 Plaintiff’s health. See Reynolds v. Wash. Dep’t of Corrs., 724 F. App’x 604 (9th Cir. 2018) 15 (rejecting prisoner’s argument that decision to “‘continue with conservative management’” 16 of back conditions was deliberately indifferent). This is true despite Plaintiff’s allegations 17 that the remaining Defendants decisions were driven, at least in part, by concerns about 18 cost or lack of time. See Nava v. Velardi, No. 15cv1156-AJB(BLM), 2018 WL 3773848, 19 at *13 (S.D. Cal. Aug. 9, 2018) (“To the extent Plaintiff is arguing that a prison doctor 20 cannot consider medical costs or other prison policies . . . , Plaintiff is wrong.” (collecting 21 cases)); see also Peralta v. Dillard, 744 F.3d 1076, 1084 (9th Cir. 2014) (en banc) (“A 22 prison medical official who fails to provided needed treatment because he lacks the 23 necessary resources can hardly be said to have intended to punish the inmate.”); Moore v. 24 Rotman, No. 1:10-cv-00738-SKO PC, 2010 WL 4877812, at *3 (E.D. Cal. Nov. 23, 2010) 25 (concluding that inability to see doctor on three occasions due to lack of time constituted 26 “isolated incidents of neglect, and d[id] not constitute deliberate indifference . . . .”). 27 Accordingly, Plaintiff’s claims against Defendants Roberts, Cham, D. Bates, J. 28 Bates, Garikaparthi, Casian, and Silva are dismissed in their entirety for failure to state a 1 claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. 2 § 1915A(b). 3 D. Leave to Amend 4 Because Plaintiff has already been provided a short and plain statement of his 5 pleading deficiencies, as well as an opportunity to amend those claims to no avail, the Court 6 finds that granting further leave to amend on the claims dismissed in this Order would be 7 futile. See Gonzalez v. Planned Parenthood, 759 F.3d 1112, 1116 (9th Cir. 2014) 8 (“‘Futility of amendment can, by itself, justify the denial of . . . leave to amend.’”) (quoting 9 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc 10 Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been 11 granted leave to amend and has subsequently failed to add the requisite particularity to its 12 claims, [t]he district court’s discretion to deny leave to amend is particularly broad.” 13 (internal quotation marks omitted) (second alteration in original)). 14 II. Conclusion and Orders 15 For the reasons discussed, the Court: 16 1. DISMISSES Plaintiff’s claims against all Defendants in their official capacities and 17 his claims against Defendants Roberts, Cham, D. Bates, J. Bates, Garikaparthi, 18 Casian, and Silva in their entirety sua sponte for failure to state a claim upon which 19 relief may be granted pursuant to 28 U.S.C. Sections 1915(e)(2)(B)(ii) and 20 1915A(b)(1) and without further leave to amend. 21 2. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen Allison, 22 Secretary, California Department of Corrections and Rehabilitation, P.O. Box 23 942883, Sacramento, California, 94283-0001. 24 3. DIRECTS the Clerk to terminate as parties to this action Defendants Roberts, Cham, 25 D. Bates, J. Bates, Garikaparthi, Casian, and Silva. 26 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended Complaint, 27 Doc. No. 10, upon Defendant Shakiba and forward it to Plaintiff along with a blank 28 U.S. Marshal Form 285. In addition, the Clerk will provide Plaintiff with a certified 1 copy of this Order, a certified copy of his First Amended Complaint, and the 2 summons so that he may serve Defendant. Upon receipt of this “IFP Package,” 3 Plaintiff must complete the Form 285 as completely and accurately as possible, 4 include an address where Defendant may be served, see S.D. Cal. Civ. L.R. 4.1.c, 5 and return it to the United States Marshal according to the instructions the Clerk 6 provides in the letter accompanying his IFP package. 7 5. ORDERS the U.S. Marshal to serve a copy of the Complaint and summons upon 8 Defendant Shakiba as directed by Plaintiff on the USM Form 285 provided to him. 9 All costs of that service will be advanced by the United States. See 28 U.S.C. § 10 1915(d); Fed. R. Civ. P. 4(c)(3). 11 6. ORDERS Defendant Shakiba, once served, to reply to Plaintiff’s Complaint within 12 the time provided by the applicable provisions of Federal Rule of Civil Procedure 13 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 14 permitted to “waive the right to reply to any action brought by a prisoner confined 15 in any jail, prison, or other correctional facility under section 1983,” once the Court 16 has conducted its sua sponte screening pursuant to 28 U.S.C. Sections 1915(e)(2) 17 and 1915A(b), and thus, has made a preliminary determination based on the face on 18 the pleading alone that Plaintiff has a “reasonable opportunity to prevail on the 19 merits,” defendant is required to respond). 20 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve 21 upon Defendant Shakiba, or, if appearance has been entered by counsel, upon 22 Defendant’s counsel, a copy of every further pleading, motion, or other document 23 submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). 24 /// 25 /// 26 /// 27 /// 28 /// 1 Plaintiff must include with every original document he seeks to file with the Clerk 2 of the Court a certificate stating the manner in which a true and correct copy of that 3 document has been served on the Defendant or Defendant’s counsel, and the date of 4 that service. See S.D. Cal. Civ. L.R. 5.2. Any document received by the Court which 5 has not been properly filed with the Clerk, or which fails to include a Certificate of 6 Service upon Defendant, may be disregarded. 7 IT IS SO ORDERED. 8 9 ||Dated: June 29, 2021 VU 10 Hg. John A. Houston 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 ee