Gonzalez v. Malhotra

• Court: District Court, S.D. California
• Decided: April 7, 2020
• Docket: 3:19-cv-02056
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANUEL ANTONIO GONZALEZ, Case No.: 3:19-cv-2056-JLS-AHG CDCR #T-42888, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT vs. PURSUANT TO 28 U.S.C. § 1915A 14 DR. MALHOTRA; DR. ZHANG, 15 Defendants. 16

17 18 I. Procedural History 19 Plaintiff Manuel Antonio Gonzalez, currently incarcerated at Richard J. Donovan 20 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 21 action filed pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) 22 Plaintiff prepaid the $400 filing fee required by 28 U.S.C. § 1914(a) to commence a 23 civil action at the time he submitted his original complaint. (See ECF No. 5.) In addition 24 to the original complaint, Plaintiff filed a Motion for a Temporary Restraining Order 25 (“TRO”), a Motion for Preliminary Injunction (“PI”), and a Motion to Appoint Counsel 26 (ECF Nos. 2, 3, 4.). Plaintiff has not requested that the Clerk issue a summons, “present[ed] 27 a summons to the clerk for signature and seal” pursuant to Fed. R. Civ. P. 4(b), and has yet 28 to executed service of his Complaint, TRO or PI upon any of the named Defendants. 1 On December 3, 2019, the Court denied Plaintiff’s Motion for TRO and PI, denied 2 his Motion to Appoint Counsel, and dismissed his complaint for failing to state a claim 3 pursuant to 28 U.S.C. § 1915A. (See ECF No. 6 at 10–11.) The Court granted Plaintiff 4 leave to file an amended complaint in order to correct the deficiencies of pleading identified 5 in the Court’s Order. (Id. at 11.) 6 On January 14, 2020, Plaintiff filed a forty-eight page First Amended Complaint 7 (“FAC”), as well as over seventy pages of exhibits. (See generally FAC, ECF No. 7.) 8 II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915A 9 A. Legal Standard 10 Plaintiff was incarcerated at the time he filed this action. “As used in this section, 11 the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused 12 of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 13 the terms or conditions of parole, probation, pretrial release, or diversionary program.” 42 14 U.S.C. § 1915A(c); see also Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1284 15 (9th Cir. 2017) (citing 28 U.S.C. § 1915(h), 1915A(c); 42 U.S.C. § 1997e(h)). 16 Section 1915A “mandates early review—‘before docketing [] or [] as soon as 17 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a 18 governmental entity or officer or employee of a governmental entity.’” Chavez v. 19 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of 20 § 1915A apply to all prisoners, no matter their fee status, who bring suit against a 21 governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443, 22 446–47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any 23 portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon 24 which relief may be granted; or (2) seeks monetary relief from a defendant who is immune 25 from such relief.” Olivas, 856 F.3d at 1283 (quoting 28 U.S.C. § 1915A(b)). “The purpose 26 of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need not bear the 27 /// 28 /// 1 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) 2 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).1 3 Section 1915A “incorporates the familiar standard applied in the context of failure 4 to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 5 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient 6 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 8 680 F.3d at 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals 9 of the elements of a cause of action, supported by mere conclusory statements, do not 10 suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible 11 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on 12 its judicial experience and common sense.” Id. The “mere possibility of misconduct” or 13 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this 14 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 15 2009). 16 B. Rule 8 17 As an initial matter, the Court finds that Plaintiff’s FAC fails to comply with Rule 18 8. Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a claim for 19 relief, the pleading must contain “a short and plain statement of the grounds for the court’s 20 jurisdiction” and “a short and plain statement of the claim showing that the pleader is 21 entitled to relief.” Fed.R.Civ.P. 8(a)(1) & (2). As stated above, Plaintiff’s FAC is forty- 22 eight pages but contains very few specific factual allegations. The Court concludes that 23 the FAC does not meet the Rule 8 standard. See McHenry v. Renne, 84 F.3d 1172, 24 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was 25 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, United 26

27 1 A similar screening would be required if Plaintiff were proceeding IFP. See 28 U.S.C. § 1915(e)(2)(B); 28 1 States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (citing 2 cases upholding Rule 8 dismissals where pleadings were “verbose,” “confusing,” 3 “distracting, ambiguous, and unintelligible,” “highly repetitious,” and comprised of 4 “incomprehensible rambling,” while noting that “[o]ur district courts are busy enough 5 without having to penetrate a tome approaching the magnitude of War and Peace to discern 6 a plaintiff’s claims and allegations.”). Although dismissal is appropriate on this ground 7 alone, the Court considers whether Plaintiff’s allegations meet the Rule 12 plausibility 8 standard. 9 C. Plaintiff’s Factual Allegations 10 On March 18, 2014, Plaintiff was “subjected” to a “head injury” which resulted in a 11 “concussion, post concussion syndrome, long term memory loss, short term memory loss, 12 off balance, loss of coordination, constant pressure in head.” (FAC at 13.) 13 Plaintiff alleges Defendant Malhotra, a neurologist, failed to provide him medical 14 care which later “resulted in high blood pressure in eyes, damage[ed] eyesight, [and] 15 irreparable nerve damage.” (Id.) As a result of the purported failure by Malhotra, Plaintiff 16 “will have to take prescription eye drops . . . for [his] lifetime to reduce high blood pressure 17 in eyes.” (Id.) Plaintiff claims Malhotra never “ordered E.M.G. test for nerve damage” 18 which he alleges is the “appropriate test for high blood pressure in eyes.” (Id.) Plaintiff 19 claims that he has “nerve damage and optic nerve damage” discovered by a neuro- 20 ophthalmologist and this damage was due to Malhotra’s “failure to provide medical care.” 21 (Id. at 14.) Plaintiff alleges Malhotra “became aware of the serious medical condition” on 22 June 7, 2018, but he “did not order necessary test to review cause of constant pressure to 23 head.” (Id. at 20.) Moreover, Plaintiff maintains that Malhotra “knew serious damage 24 could result” by not referring Plaintiff to a “specialist for necessary test.” (Id.) 25 Plaintiff claims Defendant Zhang, his “Primary Care Provider,” denied him adequate 26 medical care when Zhang purportedly failed to “re-schedule return follow up with 27 appointment with ‘Neuro Ophthalmologist,’ as “requested by ‘Neuro-Ophthalmologist’ in 28 February 2019.” (Id. at 24.) Plaintiff claims the Neuro-Ophthalmologist “ordered ‘return 1 appointment follow up’ specifically [to] monitor high blood pressure in eyes and the effects 2 of prescription eye drops, and monitor damage eyesight.” (Id.) Plaintiff alleges that the 3 failure to schedule the follow up visit caused him to be “subjected to blindness, losing 4 eyesight without specialist monitoring high blood pressure in eyes.” (Id. at 25.) 5 Plaintiff seeks twenty-one (21) million dollars in compensatory and punitive 6 damages. (Id. at 41.) 7 D. Inadequate Medical Care Claims 8 To the extent that Plaintiff contends Defendants Malhotra and Zhang failed to 9 provide him with adequate medical care, he fails to allege a plausible Eighth Amendment 10 claim. See Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1121 (citing 28 U.S.C. § 1915A). 11 A prisoner’s claim of inadequate medical care also does not constitute cruel and 12 unusual punishment unless the mistreatment rises to the level of “deliberate indifference to 13 serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle 14 v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires 15 prisoners plead facts sufficient to show (1) “a ‘serious medical need’ by demonstrating that 16 failure to treat [his] condition could result in further significant injury or the ‘unnecessary 17 and wanton infliction of pain,’” and (2) “the defendant’s response to the need was 18 deliberately indifferent.” Jett, 439 F.3d at 1096. 19 “Serious medical needs can relate to ‘physical, dental and mental health.’” Edmo v. 20 Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (quoting Hoptowit v. Ray, 682 F.2d 1237, 21 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 22 (1995)). But prison officials do not act in a deliberately indifferent manner unless they 23 “know[] of and disregard[] an excessive risk to inmate health or safety.” Farmer v. 24 Brennan, 511 U.S. 825, 837 (1994). 25 The Court will presume that Plaintiff’s factual allegations describing his medical 26 condition are sufficient to plausibly suggest he suffered from an objectively serious 27 medical need. See Wilhelm, 680 F.3d at 1122; Lopez, 203 F.3d at 1131 (“serious medical 28 needs” include “a medical condition that significantly affects an individual’s daily 1 activities,” and “the existence of chronic and substantial pain”) (citation and internal 2 quotations omitted). 3 To support a claim of deliberate indifference, however, Plaintiff must allege 4 additional facts which plausibly show the course of treatment Defendants Malhotra and 5 Zhang chose in response to his need was “medically unacceptable under the 6 circumstances,” and that they “chose this course in conscious disregard of an excessive risk 7 to the plaintiff’s health.” Edmo, 935 F.3d at 786 (citations omitted). “Deliberate 8 indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 F.3d 1011, 1019 9 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is present only 10 in cases where there was “a purposeful act or failure to respond to a prisoner’s pain or 11 possible medical need” and where that indifference is alleged to have caused harm. Jett, 12 439 F.3d at 1096. 13 The alleged indifference to medical needs must also be substantial; inadequate 14 treatment due to malpractice, or even gross negligence, does not amount to a constitutional 15 violation. Estelle, 429 U.S. at 106; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 16 1990). 17 As to Defendant Malhotra, Plaintiff alleges only that Malhotra purportedly never 18 “ordered E.M.G. test for nerve damage,” which he alleges is the “appropriate test for high 19 blood pressure in eyes.” (FAC at 13.) As to Defendant Zhang, Plaintiff alleges only that 20 he purportedly “fail[ed] to reschedule return follow up appointment with ‘neuro 21 ophthalmologist.” (Id. at 24.) 22 The Court finds that Plaintiff fails to allege facts sufficient to support a deliberate 23 indifference claim. Plaintiff has merely alleged a difference of opinion regarding his need 24 for medical care, which is not sufficient to raise a claim of deliberate indifference. See 25 Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been negligent in diagnosing 26 or treating a medical condition does not state a valid claim of medical mistreatment under 27 the Eighth Amendment. Medical malpractice does not become a constitutional violation 28 merely because the victim is a prisoner.”); id. at 107 (noting that “the question whether an 1 x-ray . . . is indicated is a classic example of a matter for medical judgment,” and that 2 provider’s failure to order “an x-ray or additional diagnostic techniques” does not 3 constitute deliberate indifference); Edmo, 935 F.3d at 786 (“A difference of opinion 4 between a physician and the prisoner—or between medical professionals—concerning 5 what medical care is appropriate does not amount to deliberate indifference.”) (citations 6 omitted). 7 Accordingly, the Court finds that Plaintiff has failed to state an Eighth Amendment 8 claim against either Malhotra or Zhang upon which relief can be granted. 9 III. Conclusion and Order 10 For the reasons explained, the Court: 11 1. DISMISSES Plaintiff’s FAC for failing to state a claim upon which relief 12 may be granted pursuant to 28 U.S.C. § 1915A(b)(1) and for violating Federal Rule of Civil 13 Procedure 8. 14 2. GRANTS Plaintiff forty-five (45) days leave from the date this Order is 15 electronically docketed in which to file an amended complaint which cures the deficiencies 16 of pleading noted. The amended complaint must be complete by itself without reference 17 to his original pleading. Any Defendant not named and any claim not re-alleged in the 18 amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach 19 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 20 amended pleading supersedes the original.”); Lacey v. Maricopa Cty., 693 F.3d 896, 928 21 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 22 in an amended pleading may be “considered waived if not repled.”). 23 If Plaintiff fails to file an amended complaint within 45 days, the Court will dismiss 24 this civil action based both on Plaintiff’s failure to state a claim upon which relief can be 25 granted pursuant to 28 U.S.C. § 1915A(b)(1), and his failure to prosecute in compliance 26 with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th 27 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, 28 /// 1 ||a district court may convert the dismissal of the complaint into dismissal of the entire 2 || action.”). 3 3. DIRECTS the Clerk of the Court to mail Plaintiff a court approved civil rights 4 ||complaint form for his use in amending. 5 IT IS SO ORDERED. 6 ||Dated: April 7, 2020 . tt f te 7 on. Janis L. Sammartino United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28