1 2 3 4 5 6 7 10 11 EARL EUGENE HAYNES, Case No.: 19cv2257-JAH(KSC)
12 Plaintiff, REPORT AND RECOMMENDA- 13 v. TION RE MOTION TO DISMISS FILED BY DEFENDANT JOHN 14 DR. JOHN CHAU, Physician and CHAU, M.D. [Doc. No. 11.] Surgeon; DR. D. ROBERTS, Chief 15 Medical Executive, and SGT. M. 16 ARTEGA, Correctional Officer, 17 Defendants. 18 19 Plaintiff Earl Eugene Haynes is proceeding pro se and in forma pauperis in this 20 civil rights action filed pursuant to Title 42, United State Code, Section 1983, alleging his 21 rights under the United States Constitution were violated at the Richard J. Donovan 22 Correctional Center (“RJD”) by defendant John Chau, M.D., because he was deliberately 23 indifferent to plaintiff’s serious medical needs. The Complaint also includes a state law 24 cause of action against Dr. Chau for medical negligence. [Doc. No. 1, at pp. 9-15, 17.] 25 Defendant Chau has filed a Motion to Dismiss [Doc. No. 11] pursuant to Federal 26 Rule of Civil Procedure 12(b)(6) seeking dismissal of the medical negligence cause of 27 action against him in plaintiff’s Complaint for failure to state a claim. [Doc. No. 11, at p. 28 2.] Plaintiff has filed an Opposition to the Motion [Doc. No. 15], and defendant has filed 1 a Reply [Doc. No. 17]. For the reasons outlined more fully below, IT IS 2 RECOMMENDED that the District Court GRANT defendant’s Motion to Dismiss WITH 3 LEAVE TO AMEND. [Doc. No. 11.] 4 Background 5 Plaintiff’s Complaint alleges he was admitted to Alvarado Hospital in May 2019 6 for surgery on a hiatal hernia. Shortly after this surgery, and while he was still in the 7 hospital recovering, plaintiff had a second emergency surgical procedure to repair an 8 opening in the incision cite. [Doc. No. 1, at p. 10.] On June 20, 2019, plaintiff was 9 discharged from the hospital and sent to “E facility” at RJD for additional post-operative 10 recovery, wound care, and monitoring by defendant Dr. Chau. [Doc. No. 1, at p. 11.] 11 On June 23, 2019, plaintiff alleges he reported abdominal pain and was seen by 12 Dr. Chau, who did nothing other than a “cursory check” of plaintiff’s stomach. By 13 June 25, 2019, plaintiff claims he was still experiencing abdominal pain and was also 14 noticing “signs of swelling & distension,” but Dr. Chau did nothing but schedule a 15 follow-up appointment in two days, but this time went by without any follow up. [Doc. 16 No. 1, at p. 11.] 17 On July 11, 2019, plaintiff had a consultation with Dr. Chau, which was “initiated 18 by Dr. King, who supervised [his] suture removal.” [Doc. No. 1, at p. 11.] Plaintiff was 19 instructed to use an abdominal binder or truss at all times. Although he renewed his 20 complaints of pain, discomfort, tenderness, and there was “noticeable” distension, 21 redness, and swelling, Dr. Chau allegedly “did nothing,” except schedule him for a later 22 appointment. [Doc. No. 1, at p. 12.] 23 Plaintiff’s next appointment with Dr. Chau was on September 4, 2019, and “a 24 ventral hernia” was discovered, which Dr. Chau described a “soft and redu[c]ible.” [Doc. 25 No. 1, at p. 12, referring to Ex. I, at p. 28.] Plaintiff expressed concern that the “ventral 26 hernia” was breaking through the site of the surgical incision, but Dr. Chau told plaintiff 27 not to worry and to use the abdominal truss. Plaintiff also “strenuously” expressed 28 concern to Dr. Chau about the “dismal progress” of recovery at the surgical incision cite, 1 but Dr. Chau showed “total disregard” for plaintiff’s concerns, pain, comfort, and 2 anxiety. [Doc. No. 1, at p. 12.] 3 The Complaint further alleges Dr. Chau “was completely aware [that] the incision 4 scar had separated a second time in 60-days, allowing [plaintiff’s] small bowel to 5 protrude,” but he showed a “lack of concern.” [Doc. No. 1, at p. 12.] Some time 6 thereafter, plaintiff submitted a “Health Care Service Request” or CDCR Form 7362, 7 “explaining the dire circumstances that were becoming worse with pronounced 8 abdominal distension.” [Doc. No. 1, at p. 13.] 9 On September 26, 2019, plaintiff alleges he had another consultation with 10 Dr. Chau. Allegedly the surgical incision cite was red, raw, and open, and plaintiff was 11 still experiencing pain, discomfort, and a burning sensation. According to plaintiff, 12 Dr. Chau’s treatment notes for this date “grossly distort” the tone of this meeting and 13 deliberately downplay the severity of the hernia. [Doc. No. 1, at p. 13.] Plaintiff claims 14 this meeting was “contentious.” [Doc. No. 1, at p. 13.] On an emergency basis and 15 “without further delay,” plaintiff wanted “repair surgery” to close the surgical incision 16 and he also wanted surgery for the new hernia. [Doc. No. 1, at p. 13.] Allegedly, 17 Dr. Chau’s attitude toward the situation was “blasé.” [Doc. No. 1, at p. 13.] 18 On October 15, 2019, plaintiff had a consultation with Dr. Zhang, and he was still 19 having pain, discomfort, swelling, and trouble sleeping. A surgical consultation at the 20 end of the month was the only option made available to him. [Doc. No. 1, at p. 14.] 21 Because of Dr. Chau’s alleged inaction, deliberate indifference, negligence, and failure to 22 treat the situation as urgent, plaintiff claims the second hernia became infected and the 23 distension in his abdomen is more pronounced. In addition, plaintiff continues to suffer 24 pain and discomfort, and he is shocked that he has not been scheduled for surgery some 25 57 days after the second hernia was discovered. [Doc. No. 1, at p. 15.] 26 / / / 27 / / / 28 / / / 1 Discussion 2 I. Motion to Dismiss Standards. 3 A plaintiff’s complaint must provide a “short and plain statement of the claim 4 showing that [he] is entitled to relief.” Johnson v. Riverside Healthcare System, LP, 534 5 F.3d 1116, 1122 (9th Cir. 2008) (citing Fed.R.Civ.P. 8(a)(2)). “Specific facts are not 6 necessary; the statement need only ‘give the defendant[s] fair notice of what . . . the claim 7 is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 8 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 9 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 10 legal theory.” Johnson v. Riverside, 534 F.3d at 1121. A motion to dismiss should be 11 granted if the plaintiff fails to proffer “enough facts to state a claim to relief that is 12 plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 13 claim has facial plausibility when the plaintiff pleads factual content that allows the court 14 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether the plaintiff has 16 alleged enough facts to state a claim, a District Court may consider “material which is 17 properly submitted as part of the complaint,” such as an attached exhibit. Hal Roach 18 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1989). 19 When considering a Rule 12(b)(6) motion to dismiss, the Court must “accept all 20 allegations of material fact in the complaint as true and construe them in the light most 21 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 22 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007).
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1 2 3 4 5 6 7 10 11 EARL EUGENE HAYNES, Case No.: 19cv2257-JAH(KSC)
12 Plaintiff, REPORT AND RECOMMENDA- 13 v. TION RE MOTION TO DISMISS FILED BY DEFENDANT JOHN 14 DR. JOHN CHAU, Physician and CHAU, M.D. [Doc. No. 11.] Surgeon; DR. D. ROBERTS, Chief 15 Medical Executive, and SGT. M. 16 ARTEGA, Correctional Officer, 17 Defendants. 18 19 Plaintiff Earl Eugene Haynes is proceeding pro se and in forma pauperis in this 20 civil rights action filed pursuant to Title 42, United State Code, Section 1983, alleging his 21 rights under the United States Constitution were violated at the Richard J. Donovan 22 Correctional Center (“RJD”) by defendant John Chau, M.D., because he was deliberately 23 indifferent to plaintiff’s serious medical needs. The Complaint also includes a state law 24 cause of action against Dr. Chau for medical negligence. [Doc. No. 1, at pp. 9-15, 17.] 25 Defendant Chau has filed a Motion to Dismiss [Doc. No. 11] pursuant to Federal 26 Rule of Civil Procedure 12(b)(6) seeking dismissal of the medical negligence cause of 27 action against him in plaintiff’s Complaint for failure to state a claim. [Doc. No. 11, at p. 28 2.] Plaintiff has filed an Opposition to the Motion [Doc. No. 15], and defendant has filed 1 a Reply [Doc. No. 17]. For the reasons outlined more fully below, IT IS 2 RECOMMENDED that the District Court GRANT defendant’s Motion to Dismiss WITH 3 LEAVE TO AMEND. [Doc. No. 11.] 4 Background 5 Plaintiff’s Complaint alleges he was admitted to Alvarado Hospital in May 2019 6 for surgery on a hiatal hernia. Shortly after this surgery, and while he was still in the 7 hospital recovering, plaintiff had a second emergency surgical procedure to repair an 8 opening in the incision cite. [Doc. No. 1, at p. 10.] On June 20, 2019, plaintiff was 9 discharged from the hospital and sent to “E facility” at RJD for additional post-operative 10 recovery, wound care, and monitoring by defendant Dr. Chau. [Doc. No. 1, at p. 11.] 11 On June 23, 2019, plaintiff alleges he reported abdominal pain and was seen by 12 Dr. Chau, who did nothing other than a “cursory check” of plaintiff’s stomach. By 13 June 25, 2019, plaintiff claims he was still experiencing abdominal pain and was also 14 noticing “signs of swelling & distension,” but Dr. Chau did nothing but schedule a 15 follow-up appointment in two days, but this time went by without any follow up. [Doc. 16 No. 1, at p. 11.] 17 On July 11, 2019, plaintiff had a consultation with Dr. Chau, which was “initiated 18 by Dr. King, who supervised [his] suture removal.” [Doc. No. 1, at p. 11.] Plaintiff was 19 instructed to use an abdominal binder or truss at all times. Although he renewed his 20 complaints of pain, discomfort, tenderness, and there was “noticeable” distension, 21 redness, and swelling, Dr. Chau allegedly “did nothing,” except schedule him for a later 22 appointment. [Doc. No. 1, at p. 12.] 23 Plaintiff’s next appointment with Dr. Chau was on September 4, 2019, and “a 24 ventral hernia” was discovered, which Dr. Chau described a “soft and redu[c]ible.” [Doc. 25 No. 1, at p. 12, referring to Ex. I, at p. 28.] Plaintiff expressed concern that the “ventral 26 hernia” was breaking through the site of the surgical incision, but Dr. Chau told plaintiff 27 not to worry and to use the abdominal truss. Plaintiff also “strenuously” expressed 28 concern to Dr. Chau about the “dismal progress” of recovery at the surgical incision cite, 1 but Dr. Chau showed “total disregard” for plaintiff’s concerns, pain, comfort, and 2 anxiety. [Doc. No. 1, at p. 12.] 3 The Complaint further alleges Dr. Chau “was completely aware [that] the incision 4 scar had separated a second time in 60-days, allowing [plaintiff’s] small bowel to 5 protrude,” but he showed a “lack of concern.” [Doc. No. 1, at p. 12.] Some time 6 thereafter, plaintiff submitted a “Health Care Service Request” or CDCR Form 7362, 7 “explaining the dire circumstances that were becoming worse with pronounced 8 abdominal distension.” [Doc. No. 1, at p. 13.] 9 On September 26, 2019, plaintiff alleges he had another consultation with 10 Dr. Chau. Allegedly the surgical incision cite was red, raw, and open, and plaintiff was 11 still experiencing pain, discomfort, and a burning sensation. According to plaintiff, 12 Dr. Chau’s treatment notes for this date “grossly distort” the tone of this meeting and 13 deliberately downplay the severity of the hernia. [Doc. No. 1, at p. 13.] Plaintiff claims 14 this meeting was “contentious.” [Doc. No. 1, at p. 13.] On an emergency basis and 15 “without further delay,” plaintiff wanted “repair surgery” to close the surgical incision 16 and he also wanted surgery for the new hernia. [Doc. No. 1, at p. 13.] Allegedly, 17 Dr. Chau’s attitude toward the situation was “blasé.” [Doc. No. 1, at p. 13.] 18 On October 15, 2019, plaintiff had a consultation with Dr. Zhang, and he was still 19 having pain, discomfort, swelling, and trouble sleeping. A surgical consultation at the 20 end of the month was the only option made available to him. [Doc. No. 1, at p. 14.] 21 Because of Dr. Chau’s alleged inaction, deliberate indifference, negligence, and failure to 22 treat the situation as urgent, plaintiff claims the second hernia became infected and the 23 distension in his abdomen is more pronounced. In addition, plaintiff continues to suffer 24 pain and discomfort, and he is shocked that he has not been scheduled for surgery some 25 57 days after the second hernia was discovered. [Doc. No. 1, at p. 15.] 26 / / / 27 / / / 28 / / / 1 Discussion 2 I. Motion to Dismiss Standards. 3 A plaintiff’s complaint must provide a “short and plain statement of the claim 4 showing that [he] is entitled to relief.” Johnson v. Riverside Healthcare System, LP, 534 5 F.3d 1116, 1122 (9th Cir. 2008) (citing Fed.R.Civ.P. 8(a)(2)). “Specific facts are not 6 necessary; the statement need only ‘give the defendant[s] fair notice of what . . . the claim 7 is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 8 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 9 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 10 legal theory.” Johnson v. Riverside, 534 F.3d at 1121. A motion to dismiss should be 11 granted if the plaintiff fails to proffer “enough facts to state a claim to relief that is 12 plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 13 claim has facial plausibility when the plaintiff pleads factual content that allows the court 14 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether the plaintiff has 16 alleged enough facts to state a claim, a District Court may consider “material which is 17 properly submitted as part of the complaint,” such as an attached exhibit. Hal Roach 18 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1989). 19 When considering a Rule 12(b)(6) motion to dismiss, the Court must “accept all 20 allegations of material fact in the complaint as true and construe them in the light most 21 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 22 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the 23 Court “to accept as true allegations that are merely conclusory, unwarranted deductions 24 of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 25 988 (9th Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, 26 “supported by mere conclusory statements,” are not enough. Ashcroft v. Iqbal, 556 U.S. 27 at 678. “Factual allegations must be enough to raise a right to relief above the 28 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. at 555. 1 On the other hand, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a 2 pro se complaint, however inartfully pleaded, must be held to less stringent standards 3 than formal pleadings drafted by lawyers. . . .’” Erickson v. Pardus, 551 U.S. at 94. 4 Particularly in civil rights cases, courts have an obligation to construe the pleadings 5 liberally and to afford the plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 6 1026, 1027 n.1 (9th Cir. 1985). 7 II. Defendant’s Motion to Dismiss Plaintiff’s Medical Negligence Claim. 8 Defendant’s Motion to Dismiss is only directed to the medical negligence 9 allegations against Dr. Chau in the Complaint. Defendant does not contend the District 10 Court should dismiss plaintiff’s Section 1983 cause of action under the Eighth 11 Amendment for deliberate indifference to his medical needs. [Doc. No. 11, at p. 2.] 12 Instead, defendant argues that the Court should dismiss the medical negligence 13 allegations against Dr. Chau, because the Complaint does not state plaintiff either 14 complied with or is exempt from complying with the claim presentation requirements of 15 California’s Government Claims Act.1 [Doc. No. 11, at pp. 2-3.] According to 16 defendant, an allegation indicating compliance with or excuse from the claim 17 presentation requirements of the Government Claims Act is “an essential element of the 18 medical negligence claim.” [Doc. No. 11, at p. 2.] 19 In his Opposition, plaintiff argues that any claims presentation requirement was 20 satisfied when he promptly filed an inmate appeal in the prison’s grievance system, 21 because an inmate appeal puts the “public entity” on notice of the claim and indicates that 22 litigation will result if the claim is not resolved through the inmate appeal process. [Doc. 23 No. 15, at p. 3.] Alternatively, if he was supposed to present his negligence claim twice 24 by submitting an inmate appeal and a separate claim under the Government Claims Act, 25
26 27 1 The Government Claims Act was previously known as the California Tort Claims Act. See City of Stockton v. Superior Court, 42 Cal.4th 730, 741-742 (Cal. 2007). 28 1 he requests “equitable tolling,” because any failure to comply was unintentional and due 2 to mistake or excusable neglect. [Doc. No. 15, at pp. 3-4.] 3 Here, defendant’s view of the applicable law is correct. California’s Government 4 Claims Act applies to negligence and other claims arising under state law. If an inmate’s 5 claim involves rights arising under state law, the inmate must not only exhaust that claim 6 in the inmate appeals process but must also complete the claim presentation procedure 7 required under the Government Claims Act. See, e.g., Munoz v. California, 33 8 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). In addition, both state and federal 9 courts “within California have found that this ‘claim presentation requirement’ 10 constitutes an element of any cause of action arising under the Government Claims Act.” 11 Mohsin v. California Dep't of Water Res., 52 F. Supp. 3d 1006, 1017–1018 (E.D. Cal. 12 2014). Therefore, an inmate’s complaint for medical negligence and/or other state law 13 claims is subject to dismissal for failure to state a claim if the inmate does not “allege 14 facts demonstrating or excusing compliance with the claim presentation requirement.” 15 State of California v. Superior Court, 32 Cal. 4th 1234, 1237, 1239 (2004). 16 In this case, plaintiff's complaint does not allege or present any facts indicating 17 compliance with the claim presentation requirements in California’s Government Claims 18 Act. In addition, as defendant points out in his Reply, plaintiff’s Opposition to the 19 Motion to Dismiss suggests he has not presented any such claim, because he seeks time 20 “to file a late claim.” [Doc. No. 15, at p. 2.] Therefore, it is recommended that the 21 District Court GRANT defendant’s Motion to Dismiss the negligence allegations in the 22 Complaint against Dr. Chau for failure to allege facts indicating compliance with or 23 exception from the presentation requirements in California’s Government Claims Act. 24 “[A] district court should grant should grant leave to amend even if no request to 25 amend the pleading was made, unless it determines that the pleading could not possibly 26 be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th 27 Cir.1995) (internal quotation marks omitted). The “rule favoring liberality in amendments 28 to pleadings is particularly important for the pro se litigant. Presumably unskilled in the 1 law, the pro se litigant is far more prone to making errors in pleadings than the person 2 who benefits from the representation of counsel.” Lopez v. Smith, 203 F.3d 1122, 1131 3 (9th Cir. 2000) (internal quotation marks omitted). 4 Here, defendant concedes that plaintiff may be entitled to leave to amend if he “can 5 show the Court that he can allege plausible facts in an amended complaint establishing 6 compliance with or excuse from the claim presentation requirements.” [Doc. No. 11, at 7 p. 4.] Accordingly, IT IS RECOMMENDED that the District Court GRANT defendant’s 8 Motion to Dismiss the negligence allegations against defendant Dr. Chau WITH LEAVE 10 Conclusion 11 Based on the foregoing, IT IS HEREBY RECOMMENDED that defendant 12 Dr. Chau’s Motion to Dismiss be GRANTED. [Doc. No. 11.] However, it is also 13 RECOMMENDED that the District Court GRANT plaintiff thirty (30) days leave to file 14 an amended complaint to allege compliance with California’s Government Claims Act as 15 to his negligence allegations against Dr. Chau. 16 If plaintiff files an amended complaint, it must be complete in itself and must not 17 refer in any manner to any prior complaint. As outlined above, an amended complaint 18 must include plausible allegations indicating compliance with or exception from the 19 presentation requirements in California’s Government Claims Act as to plaintiff’s 20 negligence allegations against Dr. Chau. If plaintiff does not timely file an amended 21 complaint, his negligence allegations against Dr. Chau will be subject to dismissal, but 22 plaintiff would still be able to pursue his deliberate indifference allegations against 23 Dr. Chau under Section 1983. 24 The undersigned Magistrate Judge submits this Report and Recommendation to the 25 United States District Judge assigned to this case pursuant to Title 28, United States 26 Code, Section 636(b)(1). 27 / / / 28 / / / 1 IT IS HEREBY ORDERED that no later than December 28, 2020 any party to 2 this action may file written objections with the District Court and serve a copy on all 3 parties. The document should be captioned “Objections to Report and 4 Recommendation.” 5 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 6 District Court and served on all parties no later than January 11, 2021. The parties are 7 advised that failure to file objections within the specified time may waive the right to 8 raise those objections on appeal of the District Court’s order. Martinez v. Ylst, 951 F.2d 9 1153 (9th Cir. 1991). 11 Dated: December 7, 2020 12 13 14 ___________________________________ 15 Karen S. Crawford United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28