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12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 vs. MOTIONS TO DISMISS PLAINTIFF’S COMPLAINT 14 DR. SHPANER; and DR. MASSOUD PURSUANT TO FRCP 12(b)(6) SOUMEKH, 15 Defendants. 16 [ECF Nos. 10, 11] 17 18 Hayes, Judge: 19 Plaintiff Kevin Voage, a state inmate currently housed at the California Health Care 20 Facility located in Stockton, California, is proceeding in this civil rights action pursuant to 21 42 U.S.C. § 1983. (ECF No. 1). On August 11, 2021, Plaintiff filed his Complaint alleging 22 Defendants Dr. Massoud Soumekh and Dr. Alexander Shpaner violated his Eighth 23 Amendment rights when they were deliberately indifferent to his serious medical needs. 24 Currently before the Court are Defendants Soumekh and Shpaner’s Motions to 25 Dismiss Plaintiff’s Complaint. (ECF Nos. 10, 11). Both Defendants contend that the 26 Complaint fails to state an Eighth Amendment claim upon which relief may be granted 27 against them. In addition, Soumekh contends that Plaintiff’s entire Complaint should be 28 dismissed as untimely under the “applicable statute of limitations.” (ECF No. 10-1 at 7). 1 Plaintiff has filed an Opposition and both Defendants have filed Replies. (ECF Nos. 20, 2 23-24). 4 On July 1, 2016, Plaintiff was incarcerated at R.J. Donovan State Prison (“RJD”) 5 and underwent cervical spinal fusion surgery. (ECF No. 1 at 6). The surgery was 6 performed by Defendant Soumekh. (Id.). Soumekh “failed to check to make sure [that 7 the] device used to fuse Plaintiff’s cervical spine was properly attached before closing the 8 surgery site.” (Id. at 3). Plaintiff suffered from respiratory complications from the surgery 9 and was hospitalized in the intensive care unit (“ICU”) for about a month, then discharged 10 for physical therapy. (Id. at 6). Plaintiff was transferred back to RJD in late August of 11 2016. (Id.). 12 Following his transfer back to prison, Plaintiff began to have difficulty swallowing 13 and breathing, was coughing up blood, and was feeling burning pain. (Id.). In September 14 of 2016, Plaintiff underwent “an upper GI,”1 which was performed by Dr. Ananthoran 15 Reddy at Alvarado Hospital. (Id.). Reddy diagnosed Plaintiff with a polyp and performed 16 a biopsy on the tissue which came back negative for cancer and positive for stomach acid. 17 (Id.). Plaintiff underwent a second upper GI in December of 2016 at which time Reddy 18 found the polyp to have grown significantly. (Id.). A second biopsy again found the tissue 19 tested negative for cancer and positive for stomach acid. (Id. at 6-7). 20 In January of 2017, Plaintiff underwent a laryngoscopy and was referred for a third 21 upper GI. (Id. at 7). Reddy was unavailable and so Defendant Shpaner performed the 22 23 24 1 See Upper GI series, Merriam-Webster.com Medical Dictionary, Merriam-Webster, 25 https://www.merriam-webster.com/medical/upper%20GI%20series (last visited April 22, 2021) (defining “Upper GI” as a “fluoroscopic and radiographic examination (as for the detection of gastroesophageal 26 reflux, hiatal hernia, or ulcers) of the esophagus, stomach, and duodenum during and following oral ingestion of a solution of barium sulfate.”); see also Cox v. Allin Corp. Plan, 70 F. Supp. 3d 1040, 1044 27 n.2 (N.D. Cal. 2014) (noting that a court may take judicial notice of “medical dictionary definitions” (citation omitted)). 28 1 procedure. (Id.). Shpaner discovered that the “polyp” was actually a hole in Plaintiff’s 2 esophagus and identified what he termed a “foreign body” in the esophagus. (Id.). Shpaner 3 “used forceps for three failed attempts to remove the metallic object by yanking hard 4 enough to lift [Plaintiff’s] entire upper body off of the gurney” despite Plaintiff’s “pleas of 5 pain” and Plaintiff’s assertion that the “foreign body” was most likely the metal device 6 used to fuse his cervical spine. (Id.). Plaintiff asked Shpaner to “refer [him] to emergency 7 surgery to repair damage, but Dr. Shpaner ignored [his] pain.” (Id.) Plaintiff was instead 8 referred to Dr. Brian Weeks for removal of what doctors believed was a razor blade. (Id.). 9 In July or August of 2017, Weeks performed a CT scan on Plaintiff and discovered 10 that the “foreign body” was part of the device Defendant Soumekh had implanted during 11 the spinal fusion surgery. (Id. at 8). Weeks did not treat Plaintiff, but instead referred him 12 for a fourth upper GI, which was performed by Reddy on October 25, 2017. (Id.). The 13 test “revealed the hole in [Plaintiff’s] esophagus was infected; the metal object was the 14 head of a bolt, a screw and other hardware; and the bone was exposed and infected.” (Id.). 15 On October 30, 2017, at the request of Defendant Soumekh, Plaintiff was transported to 16 Alvarado Hospital for “emergency surgery” to repair the damage the failed spinal fusion 17 device had caused. (Id.). After consulting with Reddy, Soumekh decided not to perform 18 the surgery because “this could become a very difficult problem,” and “removing the 19 anterior plate system most likely caused perforation of the esophagus for [Plaintiff] and 20 treating that complication is very difficult.” (Id. at 8-9). Plaintiff was discharged without 21 receiving the “emergency surgery” for which he had been admitted, returned to prison, and 22 was scheduled for surgery by neurosurgeon Dr. Onaitis on February 20, 2018. (Id. at 9). 23 Before he could undergo the surgery, Plaintiff “collapsed and lost all function or 24 ability to move [his] arms, legs, body and could not talk or communicate.” (Id.). Plaintiff 25 was transported to U.C. San Diego Hospital in “full cardiac arrest . . . requiring 26 resuscitation.” (Id.). When Plaintiff regained consciousness, he found himself in the ICU 27 and was completely paralyzed, including his arms, legs, and vocal cords. (Id.). Plaintiff 28 also had a feeding tube and a breathing tube inserted. (Id.). Six weeks later, in March 1 2018, Plaintiff was discharged to Vibra Hospital, where he was told a “faulty device 2 improperly installed” is what caused his problems. (Id. at 9-10). “Upon the knowledge of 3 the extent of damage to [Plaintiff’s] body, [Plaintiff] immediately made every effort to file 4 complaints, but officers interfered, until now.” (Id. at 10). Defendants’ acts “caused 5 [Plaintiff] to become a quadriplegic.” (Id.). “Part of [Plaintiff’s] cervical spine was 6 removed and replaced by a two in titanium cage due to severe bone infection,” which 7 requires Plaintiff to take antibiotics for the rest of his life. (Id.). In addition, staples were 8 placed in Plaintiff’s esophagus to repair the hole made by the faulty device, which make 9 eating “very painful.” (Id.). 11 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 12 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 13 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 14 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 15 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 16 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 17 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 vs. MOTIONS TO DISMISS PLAINTIFF’S COMPLAINT 14 DR. SHPANER; and DR. MASSOUD PURSUANT TO FRCP 12(b)(6) SOUMEKH, 15 Defendants. 16 [ECF Nos. 10, 11] 17 18 Hayes, Judge: 19 Plaintiff Kevin Voage, a state inmate currently housed at the California Health Care 20 Facility located in Stockton, California, is proceeding in this civil rights action pursuant to 21 42 U.S.C. § 1983. (ECF No. 1). On August 11, 2021, Plaintiff filed his Complaint alleging 22 Defendants Dr. Massoud Soumekh and Dr. Alexander Shpaner violated his Eighth 23 Amendment rights when they were deliberately indifferent to his serious medical needs. 24 Currently before the Court are Defendants Soumekh and Shpaner’s Motions to 25 Dismiss Plaintiff’s Complaint. (ECF Nos. 10, 11). Both Defendants contend that the 26 Complaint fails to state an Eighth Amendment claim upon which relief may be granted 27 against them. In addition, Soumekh contends that Plaintiff’s entire Complaint should be 28 dismissed as untimely under the “applicable statute of limitations.” (ECF No. 10-1 at 7). 1 Plaintiff has filed an Opposition and both Defendants have filed Replies. (ECF Nos. 20, 2 23-24). 4 On July 1, 2016, Plaintiff was incarcerated at R.J. Donovan State Prison (“RJD”) 5 and underwent cervical spinal fusion surgery. (ECF No. 1 at 6). The surgery was 6 performed by Defendant Soumekh. (Id.). Soumekh “failed to check to make sure [that 7 the] device used to fuse Plaintiff’s cervical spine was properly attached before closing the 8 surgery site.” (Id. at 3). Plaintiff suffered from respiratory complications from the surgery 9 and was hospitalized in the intensive care unit (“ICU”) for about a month, then discharged 10 for physical therapy. (Id. at 6). Plaintiff was transferred back to RJD in late August of 11 2016. (Id.). 12 Following his transfer back to prison, Plaintiff began to have difficulty swallowing 13 and breathing, was coughing up blood, and was feeling burning pain. (Id.). In September 14 of 2016, Plaintiff underwent “an upper GI,”1 which was performed by Dr. Ananthoran 15 Reddy at Alvarado Hospital. (Id.). Reddy diagnosed Plaintiff with a polyp and performed 16 a biopsy on the tissue which came back negative for cancer and positive for stomach acid. 17 (Id.). Plaintiff underwent a second upper GI in December of 2016 at which time Reddy 18 found the polyp to have grown significantly. (Id.). A second biopsy again found the tissue 19 tested negative for cancer and positive for stomach acid. (Id. at 6-7). 20 In January of 2017, Plaintiff underwent a laryngoscopy and was referred for a third 21 upper GI. (Id. at 7). Reddy was unavailable and so Defendant Shpaner performed the 22 23 24 1 See Upper GI series, Merriam-Webster.com Medical Dictionary, Merriam-Webster, 25 https://www.merriam-webster.com/medical/upper%20GI%20series (last visited April 22, 2021) (defining “Upper GI” as a “fluoroscopic and radiographic examination (as for the detection of gastroesophageal 26 reflux, hiatal hernia, or ulcers) of the esophagus, stomach, and duodenum during and following oral ingestion of a solution of barium sulfate.”); see also Cox v. Allin Corp. Plan, 70 F. Supp. 3d 1040, 1044 27 n.2 (N.D. Cal. 2014) (noting that a court may take judicial notice of “medical dictionary definitions” (citation omitted)). 28 1 procedure. (Id.). Shpaner discovered that the “polyp” was actually a hole in Plaintiff’s 2 esophagus and identified what he termed a “foreign body” in the esophagus. (Id.). Shpaner 3 “used forceps for three failed attempts to remove the metallic object by yanking hard 4 enough to lift [Plaintiff’s] entire upper body off of the gurney” despite Plaintiff’s “pleas of 5 pain” and Plaintiff’s assertion that the “foreign body” was most likely the metal device 6 used to fuse his cervical spine. (Id.). Plaintiff asked Shpaner to “refer [him] to emergency 7 surgery to repair damage, but Dr. Shpaner ignored [his] pain.” (Id.) Plaintiff was instead 8 referred to Dr. Brian Weeks for removal of what doctors believed was a razor blade. (Id.). 9 In July or August of 2017, Weeks performed a CT scan on Plaintiff and discovered 10 that the “foreign body” was part of the device Defendant Soumekh had implanted during 11 the spinal fusion surgery. (Id. at 8). Weeks did not treat Plaintiff, but instead referred him 12 for a fourth upper GI, which was performed by Reddy on October 25, 2017. (Id.). The 13 test “revealed the hole in [Plaintiff’s] esophagus was infected; the metal object was the 14 head of a bolt, a screw and other hardware; and the bone was exposed and infected.” (Id.). 15 On October 30, 2017, at the request of Defendant Soumekh, Plaintiff was transported to 16 Alvarado Hospital for “emergency surgery” to repair the damage the failed spinal fusion 17 device had caused. (Id.). After consulting with Reddy, Soumekh decided not to perform 18 the surgery because “this could become a very difficult problem,” and “removing the 19 anterior plate system most likely caused perforation of the esophagus for [Plaintiff] and 20 treating that complication is very difficult.” (Id. at 8-9). Plaintiff was discharged without 21 receiving the “emergency surgery” for which he had been admitted, returned to prison, and 22 was scheduled for surgery by neurosurgeon Dr. Onaitis on February 20, 2018. (Id. at 9). 23 Before he could undergo the surgery, Plaintiff “collapsed and lost all function or 24 ability to move [his] arms, legs, body and could not talk or communicate.” (Id.). Plaintiff 25 was transported to U.C. San Diego Hospital in “full cardiac arrest . . . requiring 26 resuscitation.” (Id.). When Plaintiff regained consciousness, he found himself in the ICU 27 and was completely paralyzed, including his arms, legs, and vocal cords. (Id.). Plaintiff 28 also had a feeding tube and a breathing tube inserted. (Id.). Six weeks later, in March 1 2018, Plaintiff was discharged to Vibra Hospital, where he was told a “faulty device 2 improperly installed” is what caused his problems. (Id. at 9-10). “Upon the knowledge of 3 the extent of damage to [Plaintiff’s] body, [Plaintiff] immediately made every effort to file 4 complaints, but officers interfered, until now.” (Id. at 10). Defendants’ acts “caused 5 [Plaintiff] to become a quadriplegic.” (Id.). “Part of [Plaintiff’s] cervical spine was 6 removed and replaced by a two in titanium cage due to severe bone infection,” which 7 requires Plaintiff to take antibiotics for the rest of his life. (Id.). In addition, staples were 8 placed in Plaintiff’s esophagus to repair the hole made by the faulty device, which make 9 eating “very painful.” (Id.). 11 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 12 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 13 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 14 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 15 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 16 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 17 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 18 A claim is facially plausible “when the plaintiff pleads factual content that allows the court 19 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 20 Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory 21 allegations or the “formulaic recitation of the elements of a cause of action,” Twombly, 550 22 U.S. at 555, which rise above the mere conceivability or possibility of unlawful conduct, 23 Iqbal, 556 U.S. at 678-79. “Threadbare recitals of the elements of a cause of action, 24 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. While 25 a pleading “does not require ‘detailed factual allegations,’” Rule 8 nevertheless “demands 26 more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 27 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 28 Therefore, “[f]actual allegations must be enough to raise a right to relief above the 1 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are 2 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 3 possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting id. at 4 557). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual 5 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive 6 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 7 962, 969 (9th Cir. 2009) (quoting id. at 678). 8 III. DISCUSSION2 9 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege two 10 essential elements: (1) that a right secured by the Constitution or laws of the United States 11 was violated, and (2) that the alleged violation was committed by a person acting under the 12 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 13 “[D]eliberate indifference to serious medical needs of prisoners constitutes ‘the 14 unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” 15 Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) (citation omitted). “A determination of 16 ‘deliberate indifference’ involves an examination of two elements: (1) the seriousness of 17 the prisoner’s medical need and (2) the nature of the defendant’s response to that need.” 18 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (en banc) (quoting Estelle, 429 19 U.S. at 104), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 20 (9th Cir. 1997); see also Wilhelm v. Rotman, 680 F.3d 1113 (9th Cir. 2012); Jett v. Penner, 21 22 23 2 Defendant Soumekh has filed a request for judicial notice. (ECF No. 10-2). Soumekh seeks judicial notice of a previous action filed in this Court and an action filed in San Diego Superior Court by Plaintiff. 24 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-cv-00452-MMA-WMc, 25 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 26 2015). A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 27 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Soumekh’s request for judicial notice is granted. 28 1 439 F.3d 1091, 1096 (9th Cir. 2006). 2 A. Statute of Limitations 3 Defendant Soumekh contends that Plaintiff’s filing of his Complaint on March 9, 4 2021, is “well-beyond the expiration of the statute of limitations and is therefore untimely,” 5 as he should have filed this action no later than March of 2020. (ECF No. 10-1 at 10-11). 6 Soumekh contends that based on the factual allegations in the Complaint, Plaintiff 7 “certainly had reason to believe that the surgical hardware that was implanted by Dr. 8 Soumekh was causing him injury and was the result of Dr. Soumekh’s wrongdoing” in 9 March 2018. (Id. at 11). 10 “A claim may be dismissed [for failing to state a claim] on the ground that it is barred 11 by the applicable statute of limitations only when ‘the running of the statute is apparent on 12 the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 13 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 14 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond doubt 15 that the plaintiff can prove no set of facts that would establish the timeliness of the claim.’” 16 Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also 17 Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running 18 of the statute of limitations is apparent on the face of a complaint, dismissal for failure to 19 state a claim is proper, so long as Plaintiff is provided an opportunity to amend in order to 20 allege facts which, if proved, might support tolling). 21 § 1983 contains no specific statute of limitation; therefore, federal courts apply the 22 forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 23 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. 24 Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of limitations 25 was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations period 26 was extended to two. Id. (citing CAL. CIV. PROC. CODE § 335.1). 27 The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 28 (2007); Jones, 393 F.3d at 927 (where the federal court borrows the state statute of 1 limitation, the federal court also borrows all applicable provisions for tolling the limitations 2 period found in state law). Under California law, the statute of limitations for prisoners 3 serving less than a life sentence is tolled for an additional two years. CAL. CIV. PROC. CODE 4 § 352.1(a). Accordingly, the effective statute of limitations for most California prisoners 5 is four years for claims accruing after January 1, 2003 (two-year limitations period plus 6 two-years statutory tolling). Assuming Plaintiff had reason to know of his alleged injury 7 in March 2018, Plaintiff had until March of 2022 to file this action. Defendant Soumekh’s 8 Motion to Dismiss the Complaint on the statute of limitations ground is denied. 9 B. Under Color of State Law 10 Defendant Shpaner contends that Plaintiff has failed to allege that Shpaner was a 11 “person acting under color of state law,” a necessary element of an action brought pursuant 12 to § 1983. (ECF No. 11-1 at 10). Shpaner contends that while “some physicians who 13 contract to provide services to a prison may be considered state actors, Dr. Shpaner is not 14 alleged to have worked at the prison.” (ECF No. 11-1 at 10). 15 The Supreme Court’s decision in West v. Atkins, 487 U.S. 42 (1988) unanimously 16 held that a doctor hired to provide medical care to state prisoners was a state actor for 17 purposes of § 1983. Id. at 54. The Court held that each state must provide medical care to 18 prisoners and that when a state contracts with a private doctor to provide that care, as the 19 State of California did in this matter, the doctor becomes a state actor, “clothed with the 20 authority of state law.” Id. at 55. If a doctor hired by the CDCR “misused his power by 21 demonstrating deliberate indifference” to an inmate’s serious medical needs, the 22 constitutional deprivation is “caused, in the sense relevant for state-action inquiry,” by the 23 State's having incarcerated the prisoner and putting his medical care under the control of 24 that doctor. Id. It is “the physician's function within the state system,” not his private- 25 contractor status, that determined whether his conduct could “fairly be attributed to the 26 State.” Id. at 55-56. “Contracting out prison medical care does not relieve the State of its 27 constitutional duty to provide adequate medical treatment to those in its custody, and it 28 1 does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment 2 rights.” Id.at 56. 3 Plaintiff was sent to an outside hospital to be provided medical care by the CDCR 4 and Defendant Shpaner is alleged to be the doctor that provided the care. The Court finds 5 that Defendant Shpaner is a state actor for purposes of 42 U.S.C. § 1983 liability. 6 Defendant Shpaner’s Motion to Dismiss the Complaint on the grounds that Shpaner is not 7 alleged to be a state actor is denied. 8 C. Serious Medical Need 9 Defendant Shpaner seeks dismissal of the Complaint on the ground that Plaintiff has 10 not alleged a “serious medical need for treatment by Dr. Shpaner.” (ECF No. 11-1). In 11 order to allege an Eighth Amendment deliberate indifference claim, a plaintiff must first 12 establish a “‘serious medical need’ by demonstrating that ‘[the] failure to treat [his] 13 condition could result in further significant injury or the unnecessary and wanton infliction 14 of pain.’” Jett, 439 F.3d at 1096 (quoting McGuckin, 974 F.2d at 1059). A medical need 15 is serious “if the failure to treat the prisoner’s condition could result in further significant 16 injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 17 (quoting Estelle, 429 U.S. at 104). “The existence of an injury that a reasonable doctor or 18 patient would find important and worthy of comment or treatment; the presence of a 19 medical condition that significantly affects an individual’s daily activities; or the existence 20 of chronic and substantial pain are examples of indications that a prisoner has a ‘serious’ 21 need for medical treatment.” Id. 22 The Complaint alleges that Plaintiff sought treatment from Shpaner after Plaintiff 23 began to have difficulty swallowing and breathing, was coughing up blood and was feeling 24 burning pain. (ECF No. 1 at 6). The Complaint alleges that Shpaner discovered a “hole in 25 [Plaintiff’s] esophagus” while performing an “upper g.i.” on Plaintiff. (Id.). These 26 allegations are sufficient to satisfy the objective component of an Eighth Amendment 27 claim. See e.g., Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (“We’ve held that 28 the ‘existence of chronic and substantial pain’ indicates that a prisoner’s medical needs are 1 serious”) (citing McGuckin, 974 F.2d at 1060); see also Lamon v. Austin, No. 12-cv-00296- 2 AWI-BAM-PC, 2015 WL 5595254, at *4 (E.D. Cal. Sept. 22, 2015) (recognizing 3 “excruciating” esophageal pain as an objectively serious medical need). Defendant 4 Shpaner’s Motion to Dismiss the Complaint on the ground that Plaintiff fails to adequately 5 allege serious medical need is denied. 6 D. Deliberate Indifference 7 Defendants Soumekh and Shpaner argue that Plaintiff has failed to allege facts 8 sufficient to show that either Defendant was deliberately indifferent to his serious medical 9 needs in violation of his Eighth Amendment rights. (ECF No. 10-1 at 12-15; ECF No. 11- 10 1 at 12-16). Defendant Soumekh contends that the only allegations against him are that he 11 was negligent in performing surgery on Plaintiff that included an “implanted device” that 12 failed and that he “ultimately determined not to perform surgery to remove the surgical 13 hardware.” (ECF No. 10-1 at 14). Soumekh contends that “neither the negligent 14 performance of a surgical procedure, nor the decision not to re-operate on the patient” 15 amounts to the “level of wrongdoing that is contemplated for a claim of deliberate 16 indifference to Plaintiff’s medical needs.” (Id.). Defendant Shpaner contends that 17 Plaintiff’s allegations that he “had a metal object lodged in his esophagus and [Shpaner] 18 performed a procedure in an attempt to remove it” does “not rise to the level of a 19 Constitutional violation.” (ECF No. 11-1 at 13). Shpaner contends that “contentions of 20 medical malpractice are insufficient to state a medical indifference claim.” (Id.). 21 Deliberate indifference is shown by “a purposeful act or failure to respond to a 22 prisoner's pain or possible medical need, and harm caused by the indifference.” Jett, 439 23 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). Inadvertent failures to provide adequate 24 medical care, mere negligence or medical malpractice, delays in providing care (without 25 more), and differences of opinion over what medical treatment or course of care is proper, 26 are all insufficient to constitute an Eighth Amendment violation. Gamble, 429 U.S. at 105- 27 07; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989); Shapley v. Nev. Bd. of State Prison 28 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). “Medical malpractice does not become a 1 constitutional violation merely because the victim is a prisoner.” Gamble, 429 U.S. at 106; 2 see, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974 3 F.2d at 1050; Broughton v. Cutter Lab’ys, 622 F.2d 458, 460 (9th Cir. 1980). Even gross 4 negligence is insufficient to establish deliberate indifference to serious medical needs. See 5 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Instead, a plaintiff must allege 6 that “the course of treatment the doctors chose was medically unacceptable under the 7 circumstances’ and that the defendants ‘chose this course in conscious disregard of an 8 excessive risk to [his] health.’” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) 9 (citations omitted). 10 In his Complaint, Plaintiff alleges that Defendant Soumekh “failed to check” that 11 the device he implanted during the surgery was “properly attached before closing the 12 surgery.” (ECF No. 1 at 3). Plaintiff further alleges that “[a]fter realizing the extent of his 13 failures, Dr. Soumekh noted his desire to distance himself from a very difficult problem” 14 and his “delays allowed damage to escalate.” (Id.). Plaintiff alleges that Soumekh 15 “callously” declined to perform “emergency surgery” because the surgery was “very 16 difficult.” (Id. at 8-9). As a result, Plaintiff became a “quadriplegic for the rest of his life.” 17 (Id. at 4). These “factual matter[s], accepted as true,” state an Eighth Amendment claim 18 against Defendant Soumekh that is “plausible on its face.” Iqbal, 556 U.S. at 678; see 19 Hunt, 865 F.2d at 201 (“Prison officials are deliberately indifferent to a prisoner’s serious 20 medical needs when they deny, delay, or intentionally interfere with medical treatment.”). 21 In his Complaint, Plaintiff alleges that in Defendant Shpaner’s attempts to remove 22 what he thought was a foreign body, Shpaner “used forceps for three failed attempts to 23 remove the metallic object by yanking hard enough to lift [Plaintiff’s] entire upper body 24 off of the gurney,” and “ignored [Plaintiff’s] pleas of pain as [Plaintiff] stated that it has to 25 be the device used to fuse [his] cervical spine because his yanking injured [him].” (Id.). 26 The Complaint alleges that Plaintiff asked Shpaner to refer him for emergency surgery, but 27 Shpaner “ignored [his] pain.” Id. These allegations are sufficient to support a plausible 28 claim of deliberate indifference to Plaintiff’s serious medical needs by Shpaner. See Jett, 1 ||439 F.3d at 1096. Defendants’ Motions to Dismiss Plaintiff's Complaint pursuant to 2 || Federal Rule of Civil Procedure 12(b)(6) are denied. 4 Plaintiff previously filed a Motion for Appointment of Counsel on September 22, 5 ||2021. (ECF No. 18). Magistrate Judge Barbara Major denied Plaintiff's Motion finding 6 Plaintiff “failed to allege the requisite ‘exceptional circumstances,’” required by 28 7 || U.S.C. Section 1915(e)(1) in order for the Court to have the discretion to appoint counsel 8 Plaintiff. (ECF No. 19 at 3). Specifically, Magistrate Judge Major found that Plaintiff 9 drafted and submitted several pleadings without the assistance of counsel” which 10 ||demonstrated Plaintiff was “able to articulate the claims of his case.” (/d. at 2). Plaintiff 11 filed a “Response to Order Denying Motion to Appoint Counsel” in which he stated 12 || that he relied on another inmate to draft and submit pleadings on his behalf. (ECF No. 22 13 1). The Court finds that the facts in this case could warrant appointment of counsel. 15 IT IS HEREBY ORDERED that the Defendants Soumekh and Shpaner’s Motions 16 || to Dismiss Plaintiff's Complaint (ECF Nos. 10, 11) are denied. The Court refers this case 17 the Court’s Pro Bono Panel. 18 || Dated: November 19, 2021 itt Z. A a 19 Hon. William Q. Hayes 0 United States District Court 21 22 23 24 25 26 27 28 Il oe