(PC) Garcia v. Powell

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 URIEL GARCIA, Case No. 1:22-cv-00730-EPG (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 13 v. BE REMANDED TO KINGS COUNTY SUPERIOR COURT 14 K. POWELL, et al., OBJECTIONS, IF ANY, DUE WITHIN 15 Defendants. FOURTEEN DAYS

16 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 17 18 I. BACKGROUND 19 Uriel Garcia (“Plaintiff”) is a state prisoner proceeding pro se in this action. 20 On June 15, 2022, Defendants removed the case from Kings County Superior Court. 21 (ECF No. 1). The basis for the removal was 28 U.S.C. § 1331 (ECF No. 1, p. 2), which states 22 that “[t]he district courts shall have original jurisdiction of all civil actions arising under the 23 Constitution, laws, or treaties of the United States.” According to Defendants’ notice of 24 removal, Plaintiff is bringing claims pursuant to the Eighth and Fourteenth Amendments of the 25 United States Constitution. (ECF No. 1, p. 2). 26 As it appeared that Plaintiff did not bring any claims under the United States 27 Constitution and that this Court thus lacks jurisdiction over this case, the Court ordered 28 Defendants to show cause why this case should not be remanded to Kings County Superior 1 Court. (ECF No. 5). In doing so, the Court noted that Plaintiff previously filed a federal case 2 that involved similar claims, and that Plaintiff’s federal claims were dismissed for failure to 3 state a claim. (Id. at 2). 4 On July 14, 2022, Defendants filed their response to the order to show cause. (ECF No. 5 8). Defense counsel states that she spoke to Plaintiff, and that Plaintiff stated that he intended 6 to file claims under the Eighth and Fourteenth amendment. Defendants do not address 7 Plaintiff’s previous federal case. 8 The Court finds that Plaintiff is not bringing any claims under the United States 9 Constitution in his complaint, and that even if he intended to, leave to amend would be futile 10 because any such federal claims would be barred by res judicata and/or the prohibition against 11 bringing duplicative claims. As there are no federal claims, the Court finds that this case 12 should be remanded to Kings County Superior Court. 13 II. REMAND 14 a. Legal Standards 15 Under 28 U.S.C. § 1441(a), a defendant may remove from state court any action “of 16 which the district courts of the United States have original jurisdiction.” District courts “shall 17 have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of 18 the United States.” 28 U.S.C. § 1331. The removal statute is strictly construed, and Defendants 19 bear the burden of establishing grounds for removal. Syngenta Crop Protection, Inc. v. 20 Henson, 537 U.S. 28, 32 (2002); Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 21 F.3d 1083, 1087 (9th Cir. 2009). 22 As a threshold matter, courts “must consider whether federal jurisdiction exists, even if 23 no objection is made to removal, and even if both parties stipulate to federal jurisdiction,” 24 Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations omitted), and 25 “federal jurisdiction ‘must be rejected if there is any doubt as to the right of removal in the first 26 instance,’” Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (quoting Gaus v. Miles, 27 Inc., 980 F.2d 564, 566 (9th Cir. 1992)). 28 “The presence or absence of federal-question jurisdiction is governed by the well- 1 pleaded complaint rule, which provides that federal jurisdiction exists only when a federal 2 question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 3 Inc., v. Williams, 482 U.S. 386, 392 (1987) (citation and internal quotation marks 4 omitted). “The rule makes the plaintiff the master of the claim; he or she may avoid federal 5 jurisdiction by exclusive reliance on state law.” Id. (footnote omitted). 6 b. Analysis 7 Plaintiff’s complaint does not assert any claims under the United States Constitution. 8 Plaintiff lists eight separate claims (one claim against each defendant), and for each claim, he 9 says the claim is for general negligence. For example, Plaintiff specifically states that he is 10 bringing a “General Negligence Claim” under state law. (Id. at 8). Moreover, on his cover 11 sheet, Plaintiff states that he is bringing claims for “General Negligence” and “Professional 12 Negligence” (ECF No. 1-1, p. 4), which are governed by state law. Thus, based on the face of 13 Plaintiff’s complaint, Plaintiff is only bringing state law claims. 14 In their notice of removal, Defendants point to two instances in the complaint in which 15 Plaintiff mentions the Constitution. (ECF No. 1, p. 2). One instance was included in Plaintiff’s 16 claim against defendant Powell, and one was included in Plaintiff’s claim against defendant 17 Hurtado. (ECF No. 1-1, pgs. 5 & 8). In his claim against defendant Powell, which is for 18 general negligence, Plaintiff states that “Defendant Powells violation is the omission of an 19 official duty to administer care, an M.R.I or even the opinion of an experienced doctor; AN 20 EIGHTH AMENDMENT VIOLATION OF THE U.S. Constitution, A FELONY DUE TO 21 THE DEFENDANT POWELLS PRETENCE OF OFFICE…. Properly classified, Plaintiff 22 Garcia[’]s allegation of GENERAL NEGLIGENCE against Defendant Powell, under state law 23 Title 28 U.S.C. 1367(a) [is] provable by the Majority Opinion of the United States Magistrate 24 Judge Jennifer L. Thurston….” (ECF No. 1-1, p. 5) (errors in original).1 In his claim against 25 defendant Hurtado, which is also for general negligence, Plaintiff states that “the Defendant 26 27 1 In the declaration filed in support of their response to the order to show cause, Defendants note this reference to 28 U.S.C. § 1367(a) (ECF No. 8-1, p. 2), which deals with supplemental jurisdiction. However, as 28 Plaintiff mentions a claim of general negligence and state law, the Court finds that this reference does not support an inference that Plaintiff brought a claim under the Constitution. 1 Hurtados omission of his official duty to send Plaintiff to the urgent offsite hospital 2 appointment that day, was intentional delay of a prescribed surgery-a violation of the eighth 3 and fourteenth amendment to the U.S. Constitution, establishing CASE…. Therefore, Plaintiff 4 Garcia brings suit against Defendant Hurtado – with allegations of a General Negligence 5 Claim, pursuant to Cal. Code of Civil Procedure §425.10….” (Id. at 8) (errors in original). 6 The fact that Plaintiff mentions constitutional amendments in his state law claims for general 7 negligence is not sufficient to show that Plaintiff is bringing federal claims. Kripke v. Safeway, 8 Inc., 2018 WL 3491903, at *6 (N.D. Cal. July 20, 2018) (“[A] plaintiff’s ‘repeated references’ 9 to federal law in his state law cause of action ‘does not mean that [federal law] creates the 10 cause of action under which [plaintiff] sues.’) (second and third alteration in original) (quoting 11 ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Montana, 213 F.3d 12 1108, 1113 (9th Cir. 2000)). 13 While not relied on by Defendants as a ground for removal, the Court also notes that, in 14 his general negligence claim against defendant Roberts, Plaintiff alleges that defendant Roberts 15 violated the Federal Tort Claims Act (“FTCA”). (ECF No. 1-1, pgs. 15-16). However, 16 Plaintiff does not bring a cause of action based on the FTCA, and as discussed above, 17 referencing a federal law in a state law cause of action is not sufficient to show that Plaintiff is 18 bringing federal claims. Moreover, Plaintiff cannot bring an FTCA claim because Plaintiff 19 alleges that defendant Roberts is a state employee (id. at p. 3), and Plaintiff does not sue the 20 United States. United States v. Orleans, 425 U.S. 807, 813 (1976) (“The Federal Tort Claims 21 Act is a limited waiver of sovereign immunity, making the Federal Government liable to the 22 same extent as a private party for certain torts of federal employees acting within the scope of 23 their employment.”) (emphasis added). 24 Accordingly, as Defendants have not met their burden of establishing grounds for 25 removal, the Court recommends that the case be remanded. 26 III. LEAVE TO AMEND 27 Although Defendants represent that Plaintiff intended to include claims pursuant to the 28 federal Constitution, remand is still appropriate. As stated above, Plaintiff’s complaint does not 1 include such claims and leave to amend would be futile because any such claims by Plaintiff 2 pursuant to the Constitution would be barred by res judicata and/or as duplicative. 3 a. Legal Standards 4 i. Leave to Amend 5 Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 6 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Morongo Band of Mission 7 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); see also Waldrip v. Hall, 548 F.3d 729, 8 732 (9th Cir. 2008). “However, liberality in granting leave to amend is subject to several 9 limitations. Those limitations include undue prejudice to the opposing party, bad faith by the 10 movant, futility, and undue delay.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 11 F.3d 1047, 1058 (9th Cir. 2011) (citations and internal quotation marks omitted); see also 12 Waldrip, 548 F.3d at 732. 13 ii. Res Judicata 14 “The preclusive effect of a judgment is defined by claim preclusion and issue 15 preclusion, which are collectively referred to as ‘res judicata.’ Under the doctrine of claim 16 preclusion, a final judgment forecloses successive litigation of the very same claim, whether or 17 not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion, in 18 contrast, bars successive litigation of an issue of fact or law actually litigated and resolved in a 19 valid court determination essential to the prior judgment, even if the issue recurs in the context 20 of a different claim. By preclud[ing] parties from contesting matters that they have had a full 21 and fair opportunity to litigate, these two doctrines protect against the expense and vexation 22 attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial 23 action by minimizing the possibility of inconsistent decisions.” Taylor v. Sturgell, 553 U.S. 24 880, 892 (2008) (alterations in original) (footnote omitted) (citations and internal quotation 25 marks omitted). 26 “The elements necessary to establish [claim preclusion] are: ‘(1) an identity of claims, 27 (2) a final judgment on the merits, and (3) privity between parties.’” Headwaters Inc. v. U.S. 28 Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005) (quoting Tahoe-Sierra Pres. Council, Inc. v. 1 Tahoe Reg’l Planning Agency, 322 F.2d 1064, 1077 (9th Cir. 2003)). “[T]he doctrine of res 2 judicata (or claim preclusion) ‘bar(s) all grounds for recovery which could have been asserted, 3 whether they were or not, in a prior suit between the same parties ... on the same cause of 4 action.’” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (quoting 5 Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980). 6 iii. Duplicative 7 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 8 subject matter at the same time in the same court and against the same defendant.’” Adams v. 9 California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton 10 Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 11 U.S. 880, 904 (2008). 12 “To determine whether a suit is duplicative, we borrow from the test for claim 13 preclusion.” Adams, 497 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other 14 suit pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, 15 as ‘the thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (second 16 alteration in original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, in 17 assessing whether the second action is duplicative of the first, we examine whether the causes 18 of action and relief sought, as well as the parties … to the action, are the same.” Adams, 497 19 F.3d at 689. See also Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (“[A] 20 suit is duplicative if the claims, parties, and available relief do not significantly differ between 21 the two actions.”) (citation and internal quotation marks omitted). 22 b. Plaintiff’s Prior Case 23 On November 15, 2019, Plaintiff filed Garcia v. Powell (“Garcia I”), E.D. CA, 1:19-cv- 24 01631. In his Second Amended Complaint in that case, Plaintiff sued defendants Powell, 25 Kokor, Hurtado, Ugwueze, and Swafford, id. at ECF No. 11, who are also the defendants in 26 27 28 1 this case.2 Plaintiff’s complaint was screened, and the assigned magistrate judge provided the 2 following summary: 3 Plaintiff alleges that he injured his finger during the first week of January 2019. (Doc. 11 at 3.) Though he showed his finger to Nurse Powell on multiple 4 occasions, she only provided him bandages to wrap it and told him he would be fine. (Id.) On January 22, 2019, Plaintiff saw Dr. Kokor, who issued an “urgent 5 medical treatment order.” (Id.) Thereafter, Plaintiff saw Nurse Hurtado via 6 telemedicine videoconference, who diagnosed Plaintiff with a fractured finger. (Id. at 4.) Plaintiff states that he was not scheduled for surgery at that time and 7 instead “sent back to his cell to suffer.” (Id. at 4-5.) Plaintiff saw Nurse Hurtado again on February 20, 2019. (Id. at 5.) At that time, either Nurse Hurtado or 8 Chief Medical Executive Godwin scheduled Plaintiff for corrective surgery on 9 February 27, 2019. (See id. at 3-4, 5.) Plaintiff alleges these defendants violated state regulations by not scheduling the surgery within three days of Dr. Kokor’s 10 order on January 22. (Id. at 3, 5.) 11 Dr. Swafford performed corrective surgery on Plaintiff’s finger on February 27, 12 2019. (Id. at 6.) Plaintiff states that the surgery caused him “nerve damage from 13 [his] hand up to his neck” and left his finger “crooked.” (Id.) Plaintiff alleges Dr. Swafford damaged both the previously injured finger as well as the “small finger 14 next to it.” (Id. at 6-7.) Nevertheless, Plaintiff continues to be returned to the “malpracticing surgeon.” (Id. at 8.) 15 Garcia I, ECF No. 15, p. 3. 16 The Court then analyzed Plaintiff’s Eighth Amendment claim for inadequate medical 17 care, found that Plaintiff failed to state a cognizable federal claim, found that further leave to 18 amend would be futile, and dismissed Plaintiff’s case. Id. at ECF No. 15 & ECF No. 17, p. 2. 19 The Court also noted that Plaintiff was “not preclude[d] [] from pursuing a state-law claim of 20 negligence in state court.” Id. at ECF No. 15, p. 6 n.2 & ECF No. 17, p. 2. Plaintiff appealed 21 (ECF No. 19), and the appeal is pending. 22 c. Analysis 23 As analyzed above, Plaintiff’s complaint does not assert federal claims on the face of 24 the complaint. Moreover, even if Plaintiff intended to bring claims pursuant to the Constitution 25 against defendants Powell and Hurtado, as Defendants represent in their response to the order 26 27 28 2 Plaintiff also includes additional defendants in this case, but as discussed below, the addition of defendants has no bearing on the analysis. 1 to show cause (ECF No. 8, pgs. 1-2; see also ECF No. 1, p. 2), the Court sees no reason to 2 allow Plaintiff to file an amended complaint to assert such claims because they would be barred 3 by res judicata and/or as duplicative. 4 As mentioned above, Defendants point to two instances in which Plaintiff mentions the 5 Constitution (ECF No. 1, p. 2), one in Plaintiff’s claim against defendant Powell and one was in 6 Plaintiff’s claim against defendant Hurtado. (ECF No. 1-1, pgs. 5 & 8). However, Plaintiff’s 7 current claims against these defendants are based on the same set of facts, and includes the 8 same defendants, as Garcia I.3 Plaintiff once again alleges that he injured his finger, that he 9 showed it to defendant Powell on multiple occasions, that defendant Kokor issued an urgent 10 order for medical treatment, that the order was modified by defendant Hurtado and defendant 11 Ugwueze, and that defendant Swafford performed the surgery negligently. 12 For example, as to defendant Powell, in this case Plaintiff similarly alleges that on 13 “January 1, 2019, Plaintiff Garcia broke his right hands fourth finger, and went to Corcoran 14 Prisons E Yard Clinic and revealed it to the Defendant-Registered Nurse Powell, who gave 15 Plaintiff Garcia a cloth to wrap his broken finger in. Defendant Powell turned Plaintiff away 16 each time Plaintiff returned to the clinic to complain about his broken, swollen, discolored 17 finger. Defendant Powell told Plaintiff that his injury was nothing serious.” (ECF No. 1-1, p. 18 5) (errors in original). In his previous case, Plaintiff alleged that “[w]ithin the first week of 19 January-2019, Plaintiff Garcia had broken his finger. For approximately 3 weeks he showed 20 his broken finger to Registered Nurse Kayleen Powell, who repeatedly told him ‘It’s nothing. 21 You’ll be fine,’ giving the Plaintiff Garcia ace bandages to wrap his broken finger in.” Garcia 22 1, ECF No. 11, p. 3 (errors in original). 23 As another example, as to defendant Hurtado, in this case Plaintiff alleges that on 24 January 22, 2019, defendant Kokor received a medical request slip related to the injury to 25 Plaintiff’s finger, and defendant Kokor wrote an urgent offsite order for Plaintiff to be taken to 26

27 3 Plaintiff also includes additional defendants, but as discussed above, Plaintiff only alleges that 28 defendant Powell and defendant Hurtado violated the Constitution. There is no indication that Plaintiff is attempting to bring a claim under the Constitution against any other defendant. 1 a hospital within three days. (ECF No. 1-1, p. 6). However, “the offsite order was modified by 2 Defendant [Ugwueze] and Defendant Huratado … the order was changed from 1-22-2019 to 2- 3 27-2019….” (Id. at p. 7). 4 In his previous case, Plaintiff similarly alleged that defendant Kokor wrote an urgent 5 medical treatment order on January 22, 2019. Garcia 1, ECF No. 11, p. 3. Pursuant to 6 applicable rules and regulations, an urgent care order requires treatment of a patient within 7 three days. (Id.). However, when Plaintiff saw defendant Hurtado after defendant Kokor wrote 8 the urgent medical treatment order, Plaintiff “was not transported to an Offsite Hospital for 9 surgery on his broken finger that day, so Plaintiff Garcia was sent back to his cell to suffer until 10 Dr. Kokor wrote another URGENT OFFSITE MEDICAL TREATMENT ORDER.” Id. at 4-5. 11 Plaintiff saw defendant Hurtado again on February 20, 2019, and she wrote a report noting that 12 the injury was marked as priority urgent, but she did not schedule the procedure until February 13 27, 2019. Id. at 5. Plaintiff alleges that defendant Hurtado’s failure to schedule the surgery 14 within three days of defendant Kokor’s first urgent medical treatment order violated Plaintiff’s 15 right to adequate healthcare. Id. 16 While there may be some additional or slightly different factual allegations, Plaintiff’s 17 allegations against defendants Powell and Hurtado are4 based on the same facts as his previous 18 lawsuit in Garcia I. Moreover, Plaintiff’s federal claims in Garcia I were dismissed without 19 leave to amend for failure to state a claim, and Plaintiff’s appeal is pending. Therefore, any 20 federal claims against defendant Powell and Hurtado based on constitutionally inadequate 21 medical care related to these facts would be barred by the doctrine of res judicata and/or as 22 duplicative, and thus leave to amend to allow Plaintiff to assert these claims would be futile.5 23 \\\ 24 \\\ 25 26 4 In this case Plaintiff mentions the Fourteenth Amendment in addition to the Eighth Amendment, but there is no indication that Plaintiff, a state prisoner, is asserting a separate Fourteenth Amendment claim for 27 inadequate medical care, and the Court is aware of no such claim. 5 As there is no indication that Plaintiff is bringing, or attempting to bring, a claim under the Constitution 28 against any other defendant, the Court need not determine whether any other federal claims would also be barred by res judicata or as duplicative. 1 IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 2 The Court finds that Plaintiff’s complaint does not assert any claims under the United 3 || States Constitution in his complaint, and that he cannot bring claims pursuant to the 4 || Constitution against defendants Powell and Hurtado because any such claims would be barred 5 || by res judicata and/or as duplicative. Accordingly, the Court HEREBY RECOMMENDS that: 6 1. This action be remanded to Kings County Superior Court; and 7 2. The Clerk of Court be directed to close the case and serve notice of the remand. 8 These findings and recommendations are submitted to the United States district judge 9 |] assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 10 days after being served with these findings and recommendations, any party may file 11 || written objections with the court. Such a document should be captioned “Objections to 12 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 13 || served and filed within fourteen (14) days after service of the objections. The parties are 14 || advised that failure to file objections within the specified time may result in the waiver of rights 15 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 16 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 18 || judge to this case. 19 50 IT IS SO ORDERED. 21 |! Dated: _ July 20, 2022 [sf heey —— 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28