7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 DENNIS C. HISLE, Case No. 1:21-cv-001680-ADA-SAB (PC)
11 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT’S 12 v. MOTION TO DISMISS BE DENIED
13 MARLYN CONANAN, (ECF No. 22) 14 Defendant.
15 16 Dennis C. Hisle (Plaintiff), a state prisoner, is proceeding pro se in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendant’s motion to dismiss, 18 filed September 2, 2022. 19 I. 20 RELEVANT BACKGROUND 21 This action is proceeding against Defendant Marlyn Conanan for deliberate indifference 22 in violation of the Eighth Amendment. 23 On September 2, 2022, Defendant filed the instant motion to dismiss. (ECF No. 22.) On 24 September 28, 2022, Plaintiff filed an opposition, and Defendant filed a reply on October 12, 25 2022. (ECF Nos. 23, 24.) 26 /// 27 /// /// 1 II. 2 APPLICABLE LAW 3 A motion filed under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency 4 of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of the complaint, or 5 any claim within it, “can be based on the lack of a cognizable legal theory or the absence of 6 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 7 F.2d 696, 699 (9th Cir. 1990). In order to survive dismissal for failure to state a claim, a 8 complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it 9 must contain factual allegations sufficient “to raise a right to relief above the speculative 10 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 Because Plaintiff is a pro se litigant, his pleadings are held to a less stringent standard 12 than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an 13 obligation to construe pro se pleadings liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th 14 Cir. 1985) (en banc), however, a liberal interpretation of a pro se complaint does not require the 15 court to supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of 16 Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 17 (9th Cir. 1992). 18 III. 19 DISCUSSION 20 This case is proceeding on Plaintiff’s claim for deliberate indifference against Defendant 21 Marlyn Conanan for falsification of medical records, failure to provide Plaintiff a lay-in, and 22 failure to urgently refer Plaintiff to a pulmonologist. (ECF No. 6 at 4.) 23 In her motion, Defendant argues that the claim asserted in this action are barred by the 24 doctrine of res judicata based on the holding in Hisle v. Conanan, 1:17-cv-01400-NONE-SAB 25 (PC). 26 In his opposition, Plaintiff argues there is no claim preclusion because there was no final 27 adjudication on the merits in his prior case because the claim was dismissed, without prejudice, 1 In her reply, Defendant concedes that the claim in this action is not barred by the doctrine 2 of res judicata, but continues to argue that the claim fails to give rise to a cognizable 3 constitutional violation. (ECF No. 24 at 2-4.) 4 A. Allegations of Complaint 5 In the operative complaint, Plaintiff alleges the following: 6 Dr. Maryln Conanan admitted plaintiff Hisle suffered a serious physical injury that required serious medical need. And despite that professional knowledge that plaintiff 7 Hisle required rest to prevent further injury as well as heal from his rib fractures, Dr. 8 Conanan failed to ensure plaintiff Hisle received an activity modification/lay in order to prevent further injury and allow healing. 9 Dr. Conanan’s deliberate indifference to plaintiff’s needs caused greater significant injury 10 leading to acute internal bleeding, development of pleural hematoma, lung colla[ps]e, and the need for invasive lung surgery. 11
12 Dr. Conanan’s inaction caused cr[uel] and unusual punishment and excruciating pain and permanent chronic resp[ira]tory cough with exhaustion. 13 Dr. Conanan, on or about 5-12-2016, having full knowledge from her prof[]essional 14 opinion, that plaintiff Hisle, a patient in her care required rest to heal from three broken ribs did the total opposite and prescribed patient Hisle was functional on the yard. 15
16 Dr. Conanan intentionally subjected patient Hisle to cruel and unusual punishment was deliberate indifferent to patient Hisle’s medical needs causing great pain and suffering. 17 Dr. Conanan admitted her professional opinion was plaintiff Hisle need rest, but she prescribed with wanton disregard that patient Hisle was functional on the yard. 18 This callous act by Dr. Conanan prevented plaintiff Hisle from securing any rest on his 19 own beha[lf]. 20 Dr. Conanan failed to make urgent referral to pulmonologist for intervention. 21 Dr. Conanan swore to statements of fact eg (medical records, declarations, requests for 22 admission, inter[r]ogatories, sum J. mot.) supported by false PCP notes, perjured statements and misrepresentation of facts and evidence. Dr. Conanan’s misconduct and 23 machination caused inequitable due process, affecting fairness and the judicial rights of 24 plaintiff Hisle. These duplicate actions caused damages effecting the genuine merit and credibility of plaintiff’s material evidence. Dr. Conanan swore to providing activity 25 mod/lay in to the plaintiff in her PCP notes on 5-5-16, request for admission and deposition. “All fraudulent evidence.” Dr. Conanan swore to signing a request for 26 urgent referral supported by false PCP note, total misrepresentation of facts and truth. Dr. Conanan swore plaintiff didn’t suffer pneumonia or atelectasis under her care, a total 27 perjured statement of fact the evidence shows. 1 (Compl. at 3-5, ECF No. 1.) 2 B. Screening Complaint 3 An initial matter, Plaintiff’s complaint was screened on February 4, 2022, and the Court 4 found that Plaintiff stated a cognizable claim against Defendant Marlyn Conanan for deliberate 5 indifference to a serious medical need in violation of the Eighth Amendment. 28 U.S.C. § 6 1915A; Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a 7 claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to state 8 a claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 9 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (section 10 1915(e)(2)(B)(ii) screening standard is the same as Rule 12(b)(6) standard).
Free access — add to your briefcase to read the full text and ask questions with AI
7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 DENNIS C. HISLE, Case No. 1:21-cv-001680-ADA-SAB (PC)
11 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT’S 12 v. MOTION TO DISMISS BE DENIED
13 MARLYN CONANAN, (ECF No. 22) 14 Defendant.
15 16 Dennis C. Hisle (Plaintiff), a state prisoner, is proceeding pro se in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendant’s motion to dismiss, 18 filed September 2, 2022. 19 I. 20 RELEVANT BACKGROUND 21 This action is proceeding against Defendant Marlyn Conanan for deliberate indifference 22 in violation of the Eighth Amendment. 23 On September 2, 2022, Defendant filed the instant motion to dismiss. (ECF No. 22.) On 24 September 28, 2022, Plaintiff filed an opposition, and Defendant filed a reply on October 12, 25 2022. (ECF Nos. 23, 24.) 26 /// 27 /// /// 1 II. 2 APPLICABLE LAW 3 A motion filed under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency 4 of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of the complaint, or 5 any claim within it, “can be based on the lack of a cognizable legal theory or the absence of 6 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 7 F.2d 696, 699 (9th Cir. 1990). In order to survive dismissal for failure to state a claim, a 8 complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it 9 must contain factual allegations sufficient “to raise a right to relief above the speculative 10 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 Because Plaintiff is a pro se litigant, his pleadings are held to a less stringent standard 12 than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an 13 obligation to construe pro se pleadings liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th 14 Cir. 1985) (en banc), however, a liberal interpretation of a pro se complaint does not require the 15 court to supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of 16 Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 17 (9th Cir. 1992). 18 III. 19 DISCUSSION 20 This case is proceeding on Plaintiff’s claim for deliberate indifference against Defendant 21 Marlyn Conanan for falsification of medical records, failure to provide Plaintiff a lay-in, and 22 failure to urgently refer Plaintiff to a pulmonologist. (ECF No. 6 at 4.) 23 In her motion, Defendant argues that the claim asserted in this action are barred by the 24 doctrine of res judicata based on the holding in Hisle v. Conanan, 1:17-cv-01400-NONE-SAB 25 (PC). 26 In his opposition, Plaintiff argues there is no claim preclusion because there was no final 27 adjudication on the merits in his prior case because the claim was dismissed, without prejudice, 1 In her reply, Defendant concedes that the claim in this action is not barred by the doctrine 2 of res judicata, but continues to argue that the claim fails to give rise to a cognizable 3 constitutional violation. (ECF No. 24 at 2-4.) 4 A. Allegations of Complaint 5 In the operative complaint, Plaintiff alleges the following: 6 Dr. Maryln Conanan admitted plaintiff Hisle suffered a serious physical injury that required serious medical need. And despite that professional knowledge that plaintiff 7 Hisle required rest to prevent further injury as well as heal from his rib fractures, Dr. 8 Conanan failed to ensure plaintiff Hisle received an activity modification/lay in order to prevent further injury and allow healing. 9 Dr. Conanan’s deliberate indifference to plaintiff’s needs caused greater significant injury 10 leading to acute internal bleeding, development of pleural hematoma, lung colla[ps]e, and the need for invasive lung surgery. 11
12 Dr. Conanan’s inaction caused cr[uel] and unusual punishment and excruciating pain and permanent chronic resp[ira]tory cough with exhaustion. 13 Dr. Conanan, on or about 5-12-2016, having full knowledge from her prof[]essional 14 opinion, that plaintiff Hisle, a patient in her care required rest to heal from three broken ribs did the total opposite and prescribed patient Hisle was functional on the yard. 15
16 Dr. Conanan intentionally subjected patient Hisle to cruel and unusual punishment was deliberate indifferent to patient Hisle’s medical needs causing great pain and suffering. 17 Dr. Conanan admitted her professional opinion was plaintiff Hisle need rest, but she prescribed with wanton disregard that patient Hisle was functional on the yard. 18 This callous act by Dr. Conanan prevented plaintiff Hisle from securing any rest on his 19 own beha[lf]. 20 Dr. Conanan failed to make urgent referral to pulmonologist for intervention. 21 Dr. Conanan swore to statements of fact eg (medical records, declarations, requests for 22 admission, inter[r]ogatories, sum J. mot.) supported by false PCP notes, perjured statements and misrepresentation of facts and evidence. Dr. Conanan’s misconduct and 23 machination caused inequitable due process, affecting fairness and the judicial rights of 24 plaintiff Hisle. These duplicate actions caused damages effecting the genuine merit and credibility of plaintiff’s material evidence. Dr. Conanan swore to providing activity 25 mod/lay in to the plaintiff in her PCP notes on 5-5-16, request for admission and deposition. “All fraudulent evidence.” Dr. Conanan swore to signing a request for 26 urgent referral supported by false PCP note, total misrepresentation of facts and truth. Dr. Conanan swore plaintiff didn’t suffer pneumonia or atelectasis under her care, a total 27 perjured statement of fact the evidence shows. 1 (Compl. at 3-5, ECF No. 1.) 2 B. Screening Complaint 3 An initial matter, Plaintiff’s complaint was screened on February 4, 2022, and the Court 4 found that Plaintiff stated a cognizable claim against Defendant Marlyn Conanan for deliberate 5 indifference to a serious medical need in violation of the Eighth Amendment. 28 U.S.C. § 6 1915A; Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (“Dismissal for failure to state a 7 claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to state 8 a claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm v. Rotman, 680 9 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (section 10 1915(e)(2)(B)(ii) screening standard is the same as Rule 12(b)(6) standard). Defendants fail to 11 acknowledge the Court’s screening order and present no arguments which persuade the Court it 12 erred in determining that Plaintiff stated a cognizable claim or any other grounds justifying relief 13 from the screening order exist. See Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (“A 14 district court abuses its discretion in applying the law of the case doctrine only if (1) the first 15 decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence 16 on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest 17 injustice would otherwise result.”). As explained below, Plaintiff’s allegations are sufficient to 18 allow him to proceed past the pleading stage.1 19 C. Deliberate Indifference to Serious Medical Need 20 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 21 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 22 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 23 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 24 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 25 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating 26 that failure to treat [his] condition could result in further significant injury or the unnecessary and
27 1 Defense counsel is advised to exercise caution in filing future motions to dismiss after the Court has screened the complaint and found a cognizable claim without elaboration as to why or how the Court’s screening order is 1 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 2 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of 3 mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 4 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. 5 “A difference of opinion between a physician and the prisoner – or between medical 6 professionals – concerning what medical care is appropriate does not amount to deliberate 7 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), 8 overruled in part on other grounds, Peralta, 744 F.3d at 1082-83; Wilhelm, 680 F.3d at 1122-23 9 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). Rather, Plaintiff “must show that 10 the course of treatment the doctors chose was medically unacceptable under the circumstances 11 and that the defendants chose this course in conscious disregard of an excessive risk to [his] 12 health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 13 omitted). ). In addition, “[m]edical malpractice does not become a constitutional violation 14 merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1977); Snow, 681 15 F.3d at 987-88, overruled in part on other grounds, Peralta v. Dillard, 744 F.3d at 1082-83; 16 Wilhelm, 680 F.3d at 1122. 17 Defendant argues “[a] plain reading of the compl[a]int demonstrates that Hisle’s claim is 18 based on the alleged actions of Defendant during the litigation of Hisle I.” (ECF No. 22 at 13.) 19 The Court does not agree as Defendant mischaracterizes Plaintiff’s allegations. Based upon a 20 review of the operative complaint, Plaintiff alleges that after he suffered three broken ribs of 21 which Defendant Conanan acknowledged, Conanan failed to refer Plaintiff to a pulmonologist 22 and falsely claimed to provide Plaintiff lay in, yet later noted that Plaintiff was functional on the 23 yard which caused Plaintiff further pain and suffering. These allegations are sufficient to state 24 a claim, as the Court found on screening the complaint. See Merriman v. Ponder, No. 2:19-cv- 25 1446-WBS-CKD P, 2021 WL 973950, at *1 (E.D. Cal. Mar. 16, 2021) (to sustain a deliberate 26 indifference claim, it is sufficient to allege that defendant had knowledge of the inmate’s serious 27 medical condition yet took no action to prevent further harm arising therefrom); Ortiz v. City of 1 judgment on ground that defendant's inaction could constitute deliberate indifference to serious 2 medical needs); .” McGuckin v. Smith, 974 F.2d 1050, 1060–61 (9th Cir. 1992) (“The fact that 3 [a] [defendant] sat idly by as another human being was seriously injured despite the defendant's 4 ability to prevent the injury is a strong indicium of callousness and deliberate indifference to the 5 [inmate's] suffering (citing Estelle, 429 U.S. at 106 (holding defendant's action or inaction could 6 be “sufficiently harmful to evidence deliberate indifference to serious medical needs”)). While 7 Defendant argues that Plaintiff’s claim revolve around the actions taken in Plaintiff’s previous 8 case, Defendant overlooks the other allegations presented in the operative complaint. In 9 reviewing a Rule 12(b)(6) motion to dismiss, this Court must accept as true all facts alleged in 10 the complaint and draw all reasonable inferences in favor of the claimant. See Retail Prop. Trust 11 v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). Accordingly, 12 based on the allegations in the complaint, the Court concludes that the complaint pleads facts 13 sufficient to establish Plaintiff's deliberate indifference claim. 14 IV. 15 RECOMMENDATION 16 Based on the foregoing, it is HEREBY RECOMMENDED that Defendant’s motion to 17 dismiss the complaint be DENIED. 18 This Findings and Recommendation will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 20 days after being served with this Findings and Recommendation, the parties may file written 21 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 | Findings and Recommendation.” The parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ November 2, 2022
UNITED STATES MAGISTRATE JUDGE
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28