1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 RICHARD ARMENTA, Case No. 2:22-cv-00415-JDP (PC) 10 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 11 v.
12 SHAH, et al., 13 Defendants. 14 15 16 17 18 19 Plaintiff, a state prisoner, alleges that defendants violated his Eighth and Fourteenth 20 Amendment rights by denying him adequate medical care. I found that two previous complaints 21 failed, for screening purposes, to state a cognizable claim. I have twice given plaintiff leave to 22 amend, and his third amended complaint is now before me. ECF No. 31. I have reviewed the 23 complaint and the attached documents and now conclude that plaintiff’s Eighth Amendment 24 deliberate indifference claim against defendant Shah is suitable to proceed. All other claims and 25 defendants should be dismissed. 26
27 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 2 II. Analysis 3 Plaintiff alleges that the four named defendants, all nurses or physicians at Banner 4 Medical Hospital, violated his Eighth and Fourteenth Amendment rights when they failed to treat 5 his abdominal pain that was initially diagnosed as appendicitis. ECF No. 31 at 3-4. In my 6 previous screening order, I found that plaintiff’s allegations sounded in negligence, rather than 7 establishing potential Eighth Amendment deliberate indifference. ECF Nos. 21 & 25. 8 Plaintiff has now brought the same substantive allegations, but with added context. 9 Broadly, he alleges that defendants knew that a substantial risk of serious harm existed after 10 plaintiff underwent an appendectomy, because they had taken abdominal films and received lab 11 results that should have indicated that his appendix had, in fact, not been removed. ECF No. 31 12 at 10. Despite this knowledge, he alleges that defendant Shah delayed informing him of the 13 mistake, thereby endangering his health and causing him to suffer physically. Id. at 22-23. He 14 also claims that, because defendant Shah removed “tissue” rather than the appendix he had 15 consented to, this action amounts to an “unjustified intrusion into [his] body” that violates his 16 Fourteenth Amendment rights. Id. at 11. 17 Only plaintiff’s Eighth Amendment claim against Shah is suitable to proceed. As to that 18 claim, I emphasize that the cognizable violation is not any error in the performance of the 19 appendectomy. The complaint itself alleges that, at the procedure’s completion, Shah believed he 20 had removed the appendix. Id. at 23 (noting that Shah told plaintiff that he thought he had 21 removed the appendix). Any error in performing the surgery sounds in negligence rather than 22 deliberate indifference. Rather, the Eighth Amendment claim is based on the alleged delay in 23 Shah’s admission of his error. Lab results returned on January 18, 2022, two days after the 24 surgery, show that the tissue removed during the surgery was not an appendix. Id. at 33. 25 Plaintiff alleges that Shah did not inform him of the failure to remove the appendix until two or 26 three weeks later. Id. at 22-23. These allegations, construed liberally, are sufficient to state an 27 Eighth Amendment claim against Shah. I note that plaintiff alleges that he suffered physically 28 during those two to three weeks, id. at 23, and that suffering might have been averted or 1 alleviated had Shah come forward sooner. 2 The Eighth Amendment claims against other defendants fail. Plaintiff vaguely alleges that 3 these other members of the hospital staff knew that his appendix had not been removed and that 4 he was in severe pain, but failed to inform him of the error or otherwise help him. These 5 allegations are belied by the documents attached to his complaint. See Steckman v. Hart Brewing, 6 Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“We are not required to accept as true conclusory 7 allegations which are contradicted by documents referred to in the complaint.”). Plaintiff alleges 8 that he underwent the appendectomy on January 16, 2022, at approximately 1:30 a.m., ECF No. 9 31 at 8, and by 8:00 a.m. he was in “unbearable” pain and vomiting. Id. at 9. A medical form, 10 time-stamped to 10:40 a.m., however, indicates that plaintiff was “alert, oriented, [and] in no 11 acute distress.” Id. at 26. It notes that plaintiff “offer[ed] no complaints.” Id. 12 There are two sets of progress reports from January 17, 2022. The first, authored by 13 defendant Kuliyev at approximately 10:00 a.m., does indicate that plaintiff was having frequent 14 episodes of nausea and vomiting, as well as increasing pain around the surgical area. Id. at 37. 15 Kuliyev notes, however, that plaintiff’s vital signs and lab results were good, the only abnormal 16 number being a low level of potassium. Id. Abdominal films showed only “mild post-surgical 17 ileus with underlying constipation.” Id.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 RICHARD ARMENTA, Case No. 2:22-cv-00415-JDP (PC) 10 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 11 v.
12 SHAH, et al., 13 Defendants. 14 15 16 17 18 19 Plaintiff, a state prisoner, alleges that defendants violated his Eighth and Fourteenth 20 Amendment rights by denying him adequate medical care. I found that two previous complaints 21 failed, for screening purposes, to state a cognizable claim. I have twice given plaintiff leave to 22 amend, and his third amended complaint is now before me. ECF No. 31. I have reviewed the 23 complaint and the attached documents and now conclude that plaintiff’s Eighth Amendment 24 deliberate indifference claim against defendant Shah is suitable to proceed. All other claims and 25 defendants should be dismissed. 26
27 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 2 II. Analysis 3 Plaintiff alleges that the four named defendants, all nurses or physicians at Banner 4 Medical Hospital, violated his Eighth and Fourteenth Amendment rights when they failed to treat 5 his abdominal pain that was initially diagnosed as appendicitis. ECF No. 31 at 3-4. In my 6 previous screening order, I found that plaintiff’s allegations sounded in negligence, rather than 7 establishing potential Eighth Amendment deliberate indifference. ECF Nos. 21 & 25. 8 Plaintiff has now brought the same substantive allegations, but with added context. 9 Broadly, he alleges that defendants knew that a substantial risk of serious harm existed after 10 plaintiff underwent an appendectomy, because they had taken abdominal films and received lab 11 results that should have indicated that his appendix had, in fact, not been removed. ECF No. 31 12 at 10. Despite this knowledge, he alleges that defendant Shah delayed informing him of the 13 mistake, thereby endangering his health and causing him to suffer physically. Id. at 22-23. He 14 also claims that, because defendant Shah removed “tissue” rather than the appendix he had 15 consented to, this action amounts to an “unjustified intrusion into [his] body” that violates his 16 Fourteenth Amendment rights. Id. at 11. 17 Only plaintiff’s Eighth Amendment claim against Shah is suitable to proceed. As to that 18 claim, I emphasize that the cognizable violation is not any error in the performance of the 19 appendectomy. The complaint itself alleges that, at the procedure’s completion, Shah believed he 20 had removed the appendix. Id. at 23 (noting that Shah told plaintiff that he thought he had 21 removed the appendix). Any error in performing the surgery sounds in negligence rather than 22 deliberate indifference. Rather, the Eighth Amendment claim is based on the alleged delay in 23 Shah’s admission of his error. Lab results returned on January 18, 2022, two days after the 24 surgery, show that the tissue removed during the surgery was not an appendix. Id. at 33. 25 Plaintiff alleges that Shah did not inform him of the failure to remove the appendix until two or 26 three weeks later. Id. at 22-23. These allegations, construed liberally, are sufficient to state an 27 Eighth Amendment claim against Shah. I note that plaintiff alleges that he suffered physically 28 during those two to three weeks, id. at 23, and that suffering might have been averted or 1 alleviated had Shah come forward sooner. 2 The Eighth Amendment claims against other defendants fail. Plaintiff vaguely alleges that 3 these other members of the hospital staff knew that his appendix had not been removed and that 4 he was in severe pain, but failed to inform him of the error or otherwise help him. These 5 allegations are belied by the documents attached to his complaint. See Steckman v. Hart Brewing, 6 Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (“We are not required to accept as true conclusory 7 allegations which are contradicted by documents referred to in the complaint.”). Plaintiff alleges 8 that he underwent the appendectomy on January 16, 2022, at approximately 1:30 a.m., ECF No. 9 31 at 8, and by 8:00 a.m. he was in “unbearable” pain and vomiting. Id. at 9. A medical form, 10 time-stamped to 10:40 a.m., however, indicates that plaintiff was “alert, oriented, [and] in no 11 acute distress.” Id. at 26. It notes that plaintiff “offer[ed] no complaints.” Id. 12 There are two sets of progress reports from January 17, 2022. The first, authored by 13 defendant Kuliyev at approximately 10:00 a.m., does indicate that plaintiff was having frequent 14 episodes of nausea and vomiting, as well as increasing pain around the surgical area. Id. at 37. 15 Kuliyev notes, however, that plaintiff’s vital signs and lab results were good, the only abnormal 16 number being a low level of potassium. Id. Abdominal films showed only “mild post-surgical 17 ileus with underlying constipation.” Id. Another set of progress notes authored by defendant 18 Shah, entered at approximately 10:20 a.m. acknowledge plaintiff’s vomiting, but note that it was 19 now “under good control” with the medication Zofran being administered intravenously. Id. at 20 27. Plaintiff appeared “alert and oriented.” Id. He was discharged the next day as planned. Id. 21 at 28, 32. 22 No defendant other than Shah is alleged to have had any contact with plaintiff after 23 discharge. Plaintiff alleges that, during his stay at the hospital, the other defendants knew or 24 should have known that the appendix was not removed—either because of the aforementioned lab 25 report or because of abdominal films taken on January 17, 2022. These allegations are 26 insufficient to state a claim. There is no allegation that any of the other defendants—Taylor, 27 Theobald, and Kuliyev—had access to the lab report; only defendant Shah’s name is listed on it. 28 Id. at 33. Moreover, there is no allegation that these defendants had interactions with plaintiff 1 after January 17, 2022. Additionally, defendant Kuliyev’s notes about the abdominal films on 2 January 17 show that they were unremarkable, showing only mild post-surgical ileus with 3 underlying constipation. Id. at 37. Plaintiff does allege that these defendants conspired to falsify 4 his medical records to show that his surgery went well, but he offers no specifics to support this 5 view.1 Given that I recommend dismissal of plaintiff’s federal claims against these defendants, I 6 also recommend dismissal of his state law claims against them. 7 Plaintiff’s Fourteenth Amendment claims against all defendants, premised on an 8 unjustified intrusion into his body, fail. There is no legal authority to support the proposition that 9 a minor, accidental taking of tissue during consensual surgery amounts to a taking of property or 10 a violation of bodily autonomy without due process that violates the Fourteenth Amendment. 11 Accordingly, it is ORDERED that: 12 1. The third amended complaint, ECF No. 31, brings a viable Eighth Amendment 13 claim against Defendant Shah for delay in informing plaintiff that his appendix had not been 14 removed. 15 2. With this order the Clerk of the Court shall provide to plaintiff a blank summons, a 16 copy of the April 20, 2023 complaint, and 1 USM-285 form and instructions for service of 17 process on defendant Shah. Within 30 days of service of this order, plaintiff must return the 18 attached Notice of Submission of Documents with the completed summons, the completed USM- 19 285 form, and two copies of the endorsed complaint. The court will transmit them to the United 20 States Marshal for service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure. 21 Defendant will be required to respond to plaintiff’s allegations within the deadlines stated in Rule 22 12(a)(1) of the Federal Rules of Civil Procedure. 23 3. The Clerk of Court is directed to assign a district judge to this action. 24 Further, it is RECOMMENDED that all other claims and defendants be DISMISSED 25
1 Most of the pertinent medical documents attached to plaintiff’s complaint were 26 generated before the return of the lab results showing that the appendix had not been removed. 27 As noted above, the January 16 and 17 medical notes were mostly positive and certainly not indicative of a failed surgery. It appears that defendants would only have had a motive to falsify 28 documents once the lab reports were returned on January 18. 1 | without leave to amend for failure to state a viable claim. 2 These findings and recommendations are submitted to the United States District Judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 4 | after being served with these findings and recommendations, any party may file written 5 | objections with the court and serve a copy on all parties. Such a document should be captioned 6 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 7 | objections shall be served and filed within fourteen days after service of the objections. The 8 | parties are advised that failure to file objections within the specified time may waive the right to 9 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 10 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 IT IS SO ORDERED. 13 ( 1 Ow — Dated: _ June 12, 2023 q——— 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD ARMENTA, No. 2:22-cv-0415 JDP (PC) 11 Plaintiff, 12 v. NOTICE OF SUBMISSION OF DOCUMENTS 13 SHAH, et al., 14 Defendants. 15 16 In accordance with the court's Screening Order, plaintiff must submit: 17 ___1___ completed summons form 18 ___1___ completed USM-285 forms 19 ___2___ copies of the April 20, 2023, complaint 20 21 22 DATED: 23 ________________________________ 24 Plaintiff 25 26 27 28