Marron v. Saha

• Court: District Court, S.D. California
• Decided: May 13, 2020
• Docket: 3:19-cv-01344
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO MARRON, Case No.: 19cv1344-BAS (MSB)

12 Plaintiff, REPORT AND RECOMMENDATION FOR 13 v. ORDER DENYING MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A 14 S. SAHA, M.D., et al., CLAIM 15 Defendants. 16 17 18 On July 18, 2019, Plaintiff Alejandro Marron (“Plaintiff”) filed his Complaint 19 alleging a violation of his civil rights pursuant to 42 U.S.C. section 1983. (ECF No. 1.) 20 Plaintiff alleges that while he was incarcerated in California state custody, Defendants 21 Dr. S. Saha, M.D. (“Saha”), and Dr. Griffith, M.D. (“Griffith”) (collectively, “Defendants”), 22 violated his Eighth Amendment right to be free from cruel and unusual punishment 23 when they failed to provide timely treatment and medication for Plaintiff’s right knee 24 pain and refused to issue a lower bunk accommodation. (Id. at 8-14.) Because of the 25 pain and injury caused by Defendants’ alleged delay, Plaintiff requests declaratory relief 26 and monetary damages. (See id. at 8.) On October 18, 2019, Defendants filed a Motion 27 to Dismiss the Complaint for Failure to State a Claim. (ECF No. 7.) This Court has 2 Report and Recommendation is submitted to the United States District Judge Cynthia 3 Bashant pursuant to 28 U.S.C.A. § 636(b) and Civil Local Rules 72.1(d) of the United 4 States District Court for the Southern District of California. For the reasons set forth 5 below, this Court RECOMMENDS that Defendants’ Motion to Dismiss for Failure to State 6 a Claim be DENIED. 7 I. PROCEDURAL HISTORY 8 On July 18, 2019, Plaintiff, Alejandro Marron, a state prisoner proceeding pro se 9 and in forma pauperis, filed a Complaint Under the Civil Rights Act pursuant to 42 10 U.S.C.A. § 1983. (ECF No. 1.) The Honorable United States District Judge, Cynthia A. 11 Bashant granted Plaintiff’s request to proceed in forma pauperis and screened his 12 Complaint pursuant to 28 U.S.C. sections 1915(e)(2) and 1915A(b) on August 12, 2019. 13 (ECF No. 3.) In so doing, she found that the Complaint, “contain[ed] ‘sufficient factual 14 matter, accepted as true,’ to state an Eighth Amendment claim for relief that is 15 ‘plausible on its face.’” (Id. at 4 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).) 16 Defendants filed their Motion to Dismiss on October 28, 2019. (ECF No. 7.) 17 Plaintiff filed his Opposition to Defendants’ Motion to Dismiss (“Opposition”) on 18 November 15, 2019. (ECF No. 18.) Defendants filed no reply. 19 II. FACTUAL BACKGROUND1 20 In August of 2018, Plaintiff was a prisoner at the Richard J. Donovan Correctional 21 Facility (“RJD”) in the Southern District of California, and Saha was Plaintiff’s primary 22 care physician. (ECF No. 1 at 8-9.) On February 15, 2019, Griffith became Plaintiff’s 23 primary care physician, when Plaintiff transferred from RJD to the Substance Abuse and 24 Treatment Facility (“SATF”) in the Eastern District of California. (Id. at 8-9.) Plaintiff 25

26 27 1 This Factual Background is taken from the allegations in Plaintiff’s Complaint and does not include any 2 weakness and leg giving out with no warning.” (Id. at 8.) 3 Plaintiff complained to both Saha and Griffith during appointments that he had 4 pain in his right knee and he had been falling from his top bunk. (Id. at 8-9.) Defendants 5 reviewed Plaintiff’s medical records and were aware that Plaintiff suffered right knee 6 pain, yet Defendants did not provide medical treatment, such as pain medication, 7 investigation and diagnosis of his condition, for over six months. (Id. at 9-10, 13.) 8 Plaintiff alleges that Defendants knew based on Plaintiff’s complaints that there was a 9 risk of injury if they did not provide treatment. (Id. at 9.) Plaintiff alleges that because 10 of the six-month delay in treatment, he “experienced excruciating pain and knee 11 weakness,” and his condition worsened to include “extreme weakness behind the right 12 knee, and [his] knee giving out without warning.” (Id. at 9, 12.) 13 Plaintiff claims Defendants’ failure to provide medical treatment under the above 14 circumstances violated his Eighth Amendment right to be free from cruel and unusual 15 punishment. (Id. at 12-13.) As a result, he seeks declaratory judgment, a lower bunk 16 accommodation, damages and attorney’s fees and litigation expenses. (Id. at 13.) 17 III. LEGAL STANDARD 18 Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to 19 state a claim tests the legal sufficiency of the claims within the complaint. Davis v. 20 Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). The pleading standards in 21 Federal Rule of Civil Procedure 8(a)(2) “require[] only ‘a short and plain statement of the 22 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair 23 notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 To survive a motion to dismiss, the pleading in a complaint requires enough facts to 26 state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678; see also 27 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads 2 complaint contains well-pleaded factual allegations, “a court should assume their 3 veracity and then determine whether they plausibly give rise to an entitlement to 4 relief.” Id. at 679. In ruling on a motion to dismiss, the Court does not look at whether 5 the plaintiff will “ultimately prevail but whether the claimant is entitled to offer 6 evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also 7 Twombly, 550 U.S. at 563 n.8. 8 Pro se complaints are to be construed liberally, and the Court “may only dismiss a 9 pro se complaint for failure to state a claim if it appears beyond doubt that the plaintiff 10 can prove no set of facts in support of his claim which would entitle him to relief.” 11 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting Silva v. Di Vittorio, 658 12 F.3d 1090, 1101 (9th Cir. 2011)). There is “an obligation where the petitioner is pro se, 13 particularly in civil rights cases, to construe the pleadings liberally and to afford the 14 petitioner the benefit of any doubt.” Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 15 (9th Cir. 2018) (section 1915A dismissal); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th 16 Cir. 2010) (motion to dismiss). 17 When resolving a motion to dismiss for failure to state a claim, the Court is 18 generally precluded from considering materials outside the complaint. Schneider v. Cal. 19 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). But “[w]hen a plaintiff has 20 attached various exhibits to the complaint, those exhibits may be considered in 21 determining whether dismissal [i]s proper without converting the motion to dismiss to 22 one for summary judgment.” Parks Sch. of Bus., Inc., v. Symington, 51 F.3d 1480, 1484 23 (9th Cir. 1995) (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)); see also 24 Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a 25 part of the pleading for all purposes.”). Although courts are generally permitted to 26 accept the truth of matters asserted documents included with the pleadings, it is 27 improper to use those documents to resolve factual disputes against the plaintiff's well- 2 contents of incorporated documents must be interpreted in favor of the plaintiff at the 3 pleading stage. Id. 4 Under Federal Rule of Civil Procedure 7(a), a plaintiff’s opposition to a motion to 5 dismiss does not constitute pleadings, and thus “new” allegations raised in a plaintiff's 6 opposition to a motion to dismiss are not considered when resolving a motion to 7 dismiss. Id. 8 IV. DISCUSSION 9 A. Parties’ Arguments 10 Defendants argue that facts from the sole exhibit (“the Exhibit”) attached to the 11 Complaint bely Plaintiff’s allegations and show that the claim in his Complaint is without 12 merit. (ECF No. 7 at 5.) Specifically, Defendants argue that the Exhibit “show[s] that 13 [Plaintiff] received proper treatment, including physical therapy, and that medical 14 examinations and x-rays showed that he did not need a medical order for a low bunk 15 assignment.” (Id. at 7.) Based on these facts, Defendants assert that the Complaint 16 merely shows differences of medical opinion between Plaintiff and Defendants, which 17 “are ‘insufficient, as a matter of law, to establish deliberate indifference.’” (Id. at 6 18 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).) 19 In his Opposition to the Motion to Dismiss, Plaintiff argues that the Complaint 20 alleges facts that support a finding of constitutionally inadequate medical treatment, 21 and the Court should deny Defendants’ Motion to Dismiss. (ECF No. 9 at 2.) Plaintiff 22 notes that even considering the CDCR-HCS’s reasons for denying his grievance, 23 Defendants ignored his complaints of pain for six months from August 9, 2018, when he 24 arrived at RJD, until March 7, 2019, when a provider examined him. (Id. at 3.) Plaintiff 25 explains that Defendants “failed to provide medical treatment and pain [medication] for 26 those conditions for over six months” and that they only “elected to treat him after his 27 complaint of pain to their supervisor by filing a grievance.” (Id. at 2-3 (emphasis 2 thus argues that his Complaint should be allowed to move forward due to the 3 Defendants’ personal indifference to his pain until he filed a grievance. (Id. at 3.) 4 B. Facts from Grievance Exhibit 5 The factual allegations that Defendants rely on derive from the solitary exhibit to 6 the Complaint, a packet including: (1) Plaintiff’s CDCR-0602 Health Care Grievance form, 7 submitted November 30, 2018; (2) the CDCR’s Health Care Services (“CDCR- HCS”) 8 Headquarters’ Level Response to Plaintiff’s grievance dated May 17, 2019 and signed by 9 a chief of Health Care Correspondence and Appeals Branch of CDCR-HCS 10 (“Headquarters’ Response”); and (3) the CDCR-HCS’s Institutional Level Response to 11 Plaintiff’s grievance signed on February 4, 2019 by both the Chief Medical Executive and 12 Chief Executive Officer of RJD (“Institution’s Response”). (Id. at 16-21.) In the CDCR-HCS 13 responses, its representatives provided their reasons for denying Plaintiff’s grievance. 14 (Id.) Though the Exhibit does not include any medical records, it reveals the following: 15 On November 30, 2018, Plaintiff submitted a Health Care Grievance with CDCR- 16 HCS asking for reinstatement of his lower bunk “chrono,”2 which he alleged a sergeant 17 had removed from his medical file without explanation when he arrived at RJD on 18 August 9, 2018. (Id. at 16.) Plaintiff explained that he was having trouble getting on his 19 top bunk and had fallen while attempting to do so about a month prior. (Id.) On 20 January 8, 2019, Saha interviewed Plaintiff regarding the grievance appeal and Plaintiff’s 21 bottom bunk chrono. (Id.) On February 5, 2019, the Institution’s Response to Plaintiff’s 22 grievance was issued, stating that based on Plaintiff’s interview with Saha and his health 23 record, the CDCR-HCS would not intervene at the Institutional Level. (Id. at 19.) The 24 Institution’s Response cited a CDCR 7362 form that Plaintiff purportedly submitted on 25

26 27 2 A medical “chrono” is a recommendation by a prison physician that relates to an inmate’s medical 2 longer needed it. (Id.) It further stated, without any supporting facts, that Plaintiff did 3 not have a medical necessity for a lower bunk. (Id.) 4 The Headquarters’ issued its Response on May 17, 2019, stating that it would not 5 intervene, as Plaintiff’s grievance for a lower bunk chrono was not supported by 6 documentation and was “refuted by professional healthcare staff familiar with 7 [Plaintiff’s] health care history” and his medical record. (Id. at 18.) More specifically, 8 the Headquarters’ Response claimed that on March 7, 2019, an unspecified provider 9 had evaluated Plaintiff as a new arrival at SATF for complaints of right knee pain, and a 10 request to reinstate his lower bunk chrono. (Id. at 17.) That provider allegedly noted 11 that recent x-ray results “were within normal limits,” and that Plaintiff did not have 12 numbness, tingling, or loss of ability to perform daily living activities. (Id.) The provider 13 advised Plaintiff that a bottom bunk chrono was not medically indicated at that time 14 and referred Plaintiff for a physical therapy evaluation. (Id.) A physical therapist 15 evaluated Plaintiff on May 3, 2019 for the pain in his right knee. (Id.) The therapist 16 recommended vastus medialis oblique strengthening, and Plaintiff agreed to one 17 session. (Id.) The physical therapist did not find any physical deficits that warranted a 18 lower bunk chrono. (Id. at 18.) 19 C. Sufficiency of Plaintiff’s Complaint 20 Plaintiff claims that Defendants violated his Eighth Amendment right by providing 21 constitutionally deficient medical treatment, on a theory of deliberate indifference to 22 serious medical needs. To prevail on this claim, Plaintiff must satisfy the Ninth Circuit’s 23 two-pronged test for deliberate indifference to a medical need: “First, the plaintiff must 24 show a serious medical need by demonstrating that failure to treat a prisoner's 25 condition could result in further significant injury or the unnecessary and wanton 26 infliction of pain. Second, the plaintiff must show the defendant's response to the need 27 was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 2 the condition resulting in further significant injury constitutes the “objective standard” 3 of proving claims of deliberate indifference. Snow v. McDaniel, 681 F.3d 978, 985 (9th 4 Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th 5 Cir. 2014) (en banc). “A ‘serious’ medical need exists if the failure to treat a prisoner's 6 condition could result in further significant injury or the ‘unnecessary and wanton 7 infliction of pain’.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (quoting 8 Estelle v. Gamble, 429 U.S. 97, 104 (1976)), partially overruled on other grounds by 9 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). 10 The second prong of deliberate indifference is considered the “subjective 11 standard,” and requires “more than ordinary lack of due care for the prisoner’s interests 12 or safety.” Id. “The requirement of deliberate indifference is less stringent in cases 13 involving a prisoner’s medical needs than in other cases involving harm to incarcerated 14 individuals because ‘[t]he State’s responsibility to provide inmates with medical care 15 ordinarily does not conflict with competing administrative concerns.’” McGuckin, 974 16 F.2d at 1060 (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)). “In deciding whether 17 there has been deliberate indifference to an inmate's serious medical needs, [courts] 18 need not defer to the judgment of prison doctors or administrators.” Hunt v. Dental 19 Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). However, “to show deliberate indifference, the 20 plaintiff must show that the course of treatment the doctors chose was medically 21 unacceptable under the circumstances and that the defendants chose this course in 22 conscious disregard of an excessive risk to the plaintiff’s health.” Hamby v. Hammond, 23 821 F.3d 1085, 1092 (9th Cir. 2016) (internal quotation marks and citation omitted). 24 Construing Plaintiff’s pleadings liberally, with the benefit of any doubt, Plaintiff 25 has met the Twombly-Iqbal standards in pleading his claim that his Eighth Amendment 26 rights were violated by Defendants. Plaintiff alleges that Defendants’ delay in treatment 27 “caused [his] condition to worsen, causing extreme weakness behind right knee and 2 pain,” “knee giving out without warning,” and “falling [while] attempting to get to his 3 top bunk,” (id. at 10). Plaintiff claims that he suffered “excruciating pain and knee 4 weakness” in his right leg as a result of Defendants’ delay. (Id. at 12.) Plaintiff’s 5 allegations in the Complaint satisfy the objective standard of a deliberate indifference 6 claim by stating facts showing that Plaintiff had a serious medical need, which if not 7 treated, could cause Plaintiff further injury or the unnecessary and wanton infliction of 8 pain. 9 Plaintiff’s pleading also satisfies the subjective standard of the Ninth Circuit’s two- 10 prong test. Plaintiff alleges that Defendants denied and delayed his treatment for over 11 six months. (Id. at 12.) Plaintiff further alleges that despite Defendants’ knowledge of 12 his condition, Defendants failed to treat him, and that this failure was “intentional, or 13 willful [sic] reckless and done with callous malfeasance to the constitutional and civil 14 rights of Plaintiff.” (Id. at 10, ¶ 32.) Plaintiff’s pleadings also allege that Defendants 15 “accessed the computer medical file of Plaintiff to determine his chief complaint, illness 16 and medications,” Defendants “knew Plaintiff suffers from pain and knee weakness,” 17 and “ignored and/or delayed Plaintiff’s medical treatment . . . .” (Id. at 11.) Presuming 18 the facts of the Complaint to be true for the purposes of resolving the Motion to 19 Dismiss, ignoring and delaying the Plaintiff’s known complaints of pain and a faltering 20 knee for over six months could constitute deliberate indifference to his medical needs. 21 See Jett v. Penner, 439 F.3d 1091, 1094-97 (9th Cir. 2006) (holding that the plaintiff 22 sufficiently pleaded his cause of action when the complaint alleged delay of two months 23 in prison staff treating him for his broken thumb and this delay resulted in further harm 24 to the plaintiff); Hunt, 865 F.2d at 199-201 (holding that the plaintiff sufficiently pleaded 25 his cause of action when the complaint alleged delay for over three months in providing 26 dental treatment to plaintiff, as well as prison officials’ knowledge of plaintiff’s loss of 27 dentures and resulting pain). 2 CDCR-HCS representatives in support of their denials of Plaintiff’s grievance can override 3 Plaintiff’s own assertion of facts. Although the Court considers exhibits attached to the 4 complaint as part of the complaint, (Fed. R. Civ. P. 10(c)), the Court still does not engage 5 in the weighing of evidence at the motion to dismiss phase. In Khoja, the Ninth Circuit 6 explained that even when documents are treated “as though they are part of the 7 complaint itself,” “it is improper to assume the truth of an incorporated document if 8 such assumptions only serve to dispute facts stated in a well-pleaded complaint.” 9 Khoja, 899 F.3d at 1002-03; see also Sgro v. Danone Waters of N. Am., Inc., 532 F.3d 10 940, 943 n.1 (9th Cir. 2008) (the court could consider the document that Plaintiff relied 11 on in the complaint, but should not assume the veracity of disputed statements within 12 those documents). If this Court were to assume the veracity of the facts as presented to 13 support the CDCR’s decision not to intervene pursuant to a plaintiff’s grievance, it would 14 be nearly impossible for any plaintiff with a deliberate medical indifference claim to 15 survive a motion to dismiss, as the administrative exhaustion requirement essentially 16 mandates prior CDCR denials of prisoner grievance forms prior to the initiation of 17 litigation. Such a system would be unfair to plaintiffs seeking redress for alleged 18 violations of their constitutional rights. 19 This Court must follow the fundamental rule that at the pleading stage factual 20 disputes are interpreted in favor of the plaintiff. Khoja, 899 F.3d at 1014. Therefore, 21 the selective and conclusory statements of CDCR-HCS representatives regarding the 22 opinions of CDCR healthcare providers about Plaintiff’s conditions and their 23 determination that Plaintiff was “being evaluated, treated, monitored, and educated 24 concerning [his] health issues consistent with the medical plan of care as determined by 25 [his] Primary Care Providers,” cannot serve to negate Plaintiff’s allegations in his 26 complaint. Contrary to the CDCR’s statements that Plaintiff received adequate care, 27 Plaintiff asserts in his Complaint that he was not treated for six months, and that 2 also id. at 11, ¶ 39.) 3 Further, even if the Court accepts the truth of the specific factual assertions in the 4 Exhibit, the facts in the Exhibit do not contradict Plaintiff’s allegations regarding 5 Defendants’ inaction. Nothing in the Exhibit demonstrates that Defendants treated 6 Plaintiff’s complaints between Plaintiff’s arrival at RJD in August 2018 and the 7 examination of Plaintiff in March 2019. While Defendant Saha interviewed Plaintiff in 8 January 2019 about this grievance, there is no indication that any assessment or 9 treatment followed. (See ECF No. 1 at 16, 19.) Similarly, while the CDCR-HCS states that 10 the provider who assessed Plaintiff in March 2019 reviewed “recent x-rays,” there is no 11 indication when those x-rays were taken, or that they were taken after August 2018. 12 (Id. at 17.) Therefore, the Exhibit does not conflict with the Complaint. 13 Finally, Defendants’ claim that the Complaint merely demonstrates a difference of 14 medical opinion is unavailing. Plaintiff does not claim that Defendants violated his rights 15 by following one course of medical treatment over another, but that Defendants’ failure 16 to assess, diagnose, and treat him for a period of over six months constituted deliberate 17 indifference. Cf. Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004) (in order on 18 motion for summary judgment, finding that conflicting opinions of medical experts were 19 nonactionable difference of medical opinion, where each expert reasonably believed 20 symptoms were caused by different underlying conditions, implicating different courses 21 of treatment); Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, 1344 (9th 22 Cir. 1981) (holding that Plaintiff’s allegation that two x-rays would have been sufficient 23 rather than the twelve x-rays that were actually taken was “no more than a difference in 24 medical opinion”). Defendants’ citations to cases regarding how a court should assess a 25 complaint’s allegations of “imminent danger of serious physical injury” for purposes of 26 determining whether the complaint falls within an exception to the three strikes rule of 27 the Prison Litigation Reform Act (“PLRA”), (see ECF No. 7 at 8-9 (citing Wilson v. Appel, 1 || (9th Cir. 2007)), are also inapplicable here, as Defendants have not identified any PLRA 2 issue before the Court. 3 For the foregoing reasons, Plaintiff has met the minimal pleading standards 4 || required for his cause of action, and thus Defendants’ Motion to Dismiss should be 5 || denied. 6 V. CONCLUSION AND RECOMMENDATION 7 For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District 8 || Judge issue an Order: (1) approving and adopting this Report and Recommendation, and 9 directing that Judgment be entered DENYING the Motion to Dismiss. 10 IT IS HEREBY ORDERED that no later than May 27, 2020, any party to this action 11 || may file written objections with this Court and serve a copy on all parties. The 12 ||document should be captioned “Objections to Report and Recommendation.” 13 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 14 || Court and served on all parties no later than June 10, 2020. The parties are advised that 15 || failure to file objections within the specified time may waive the right to raise those 16 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 17 || Cir. 1998). 18 IT IS SO ORDERED. 19 ||Dated: May 13, 2020 TZ. 20 4 L <—{— Honorable Michael S. Berg United States Magistrate Judge 22 23 24 25 26 27 28