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Velasquez v. Barrios

August 29, 2008

DAVID VELASQUEZ, CDCR #D-75915, PLAINTIFF,
v.
A. BARRIOS, C. GREY, C. ROBERTSON, M. LEVIN, F. PASCUA, R. TORREZ, GONZALES, FLINT, S. THOMS, C. HALL, N. GRANNIS AND L.E. SCRIBNER, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER (1) ADOPTING WITH MODIFICATION REPORT AND RECOMMENDATION TO GRANT DEFENDANT FLINT'S AMENDED MOTION TO DISMISS; and (2) ADOPTING WITH MODIFICATION REPORT AND RECOMMENDATION TO GRANT COLLECTIVE DEFENDANTS' MOTION TO DISMISS [Dkt Nos. 32, 58, 57, 70, 83]

Plaintiff David Velasquez ("Velasquez") is proceeding pro se with a 42 U.S.C. § 1983 civil rights action arising from alleged constitutional violations and negligence by prison medical and administrative personnel associated with their responses to his needs while incarcerated in Calipatria State Prison. The matter is before the court on two Reports and Recommendations ("R&R") of the Magistrate Judge assigned to this case. The R&R addressing the Motion To Dismiss ("Motion") the First Amended Complaint (Dkt No. 9 "FAC") filed by all but two of the named defendants ("Collective Defendants") recommends the Court grant the Motion, with leave to amend.*fn1 Dkt Nos. 32, 58. The R&R addressing the separate (and unopposed) Amended Motion To Dismiss filed by one of the two other named defendants, Dr. Frank B. Flint, M.D. (who was belatedly served) recommends granting the Amended Motion, with leave to amend. Dkt Nos. 57, 70. The remaining named defendant, Juan Gonzalez, appears not to have been served.*fn2

The Court granted Velasquez extensions of time to file Objections to the R&Rs. Dkt Nos. 61, 66, 78. He filed Objections to the R&R addressing the Collective Defendants Motion, combining a Motion For Leave To Amend. Dkt No. 69. The Court accepted his subsequent filing of a Motion To Amend R&R Objections with supplemental medical records evidence. Dkt Nos. 82, 83. Velasquez missed the August 15, 2008 extended deadline to file Objections to the R&R addressing Dr. Flint's Motion, but the court received from him on August 18, 2008 a document captioned "Objections To Report And Recommendation" which purports to inform the Court he has "corrected" the error identified in the R&R associated with a state claims procedure, and again asks for leave to amend his complaint and for more time to respond. The Court separately rejects that belated filing, one of multiple attempted filings the Court has informed Velasquez in prior Orders are not appropriate responses in the procedural posture of this case.

The Court has conducted a de novo review of the legal standards and the recommendations to which Velasquez has objected. For the reasons discussed below, the R&R recommending Dr. Flint's Amended Motion be granted is ADOPTED, and the R&R recommending the Collective Defendants' Motion be granted is ADOPTED, but in both instances the Court REJECTS the recommendation Velasquez be granted leave to amend his allegations in a Second Amended Complaint, terminating this action.

I. BACKGROUND

A. Factual Background

Velasquez's October 16, 2007 FAC alleges Eighth and Fourteenth Amendment cruel and unusual punishment and due process violations as well as state law negligence claims arising from the manner in which his medical needs and administrative appeals were addressed by prison officials and medical staff associated with a hernia, hernia surgery, and pain management before and after the surgery. He names as defendants: A. Barrios, a medically trained assistant; C. Gray, a supervising registered nurse; C. Robertson, a health care manager; M. Levin, a medical doctor; F. Pascua, a medical appeals examiner; Juan Gonzalez, a surgeon; R. Torrez, a medical appeals analyst; Frank B. Flint, a surgeon; S. Thomas, a doctor; C. Hall, an appeals examiner; N. Grannis, the chief inmate appeals coordinator; and L.E. Scribner, the Calipatria warden, whose responsibilities allegedly include reviewing all administrative appeals filed by inmates. Velasquez sues all the defendants in their individual and official capacities. FAC ¶¶ 4-15.

Velasquez alleges he first submitted a sick call slip seeking an examination for pain in his stomach in June 2005. FAC ¶17. He saw Dr. Gonzalez in July 2005. Dr. Gonzalez diagnosed the cause as a protruding hernia and recommended Velasquez's request for surgery be approved by the Medical Authorization Review Committee. FAC ¶¶ 18-19. Velasquez alleges he waited ten and one-half months for the committee to act. During that interval, on April 27, 2006, he was injured during an "assault" by prison officials unrelated to his FAC complaints, an incident he contends worsened his untreated hernia condition and associated pain. FAC ¶¶ 32-34. He submitted a third request for curative treatment on May 10, 2006. FAC ¶¶ 20-22. That appeal was received and processed on May 12, 2006, with assignment to A. Barrios. Barrios initially entered in his report Velasquez was approved for the surgery, and the procedure was awaiting scheduling by the surgeon's office. He modified the report to explain Dr. Gonzalez was no longer available at the facility, but Velasquez would be scheduled for an appointment with the doctor's replacement. Defendants Levin and Pascua "upheld" the Barrios appeal response.*fn3 FAC ¶¶ 23-31.

Velasquez alleges he resubmitted his administrative appeal on July 21, 2006, reiterating his request for immediate surgery. FAC ¶ 36. On August 7, 2006, he spoke with defendant Thomas, "yard medical staff," about his pain and the fact he had been waiting almost a year for hernia repair surgery. He acknowledges he had been receiving medication for his pain during the interim, but told Thomas it was no longer effective because the hernia had worsened, and he asked for stronger medication. Thomas told him discourteously to be happy with the medication he was given. FAC ¶¶ 37-42. Velasquez alleges that response prompted him to file another administrative appeal, alleging misconduct, denial of medical care, and malpractice, because Thomas had been aware of Velasquez' pain since at least June 2006 when she examined him after he was taken to the infirmary to receive treatment for abdominal pain and had herself prescribed the pain medication Velasquez was given. FAC ¶¶ 43-51.

On August 22, 2006, defendants Gray and Robertson partially granted Velasquez's appeal. They stated: on April 19, 2006, the general surgeon had requested hernia repair be approved; the medical authorization review committee had authorized the procedure on May 9, 2006; the general surgeon who was scheduled to perform the procedure was unavailable for several months, but was now available for scheduling; and Velasquez "is high on the chronological list of patients to have surgery performed and will be scheduled in the near future," with the expectation "the procedure will be scheduled within the next 30 days." FAC ¶¶ 52-56. Velasquez was "dissatisfied" with that result because he had already waited 13 months, during which time the hernia had swelled to softball size, limiting his mobility and causing him extreme pain, back spasms, and weight gain. FAC ¶ 57-58. On August 24, 2006, he submitted another appeal to the "highest appeal level available" seeking immediate curative surgery, not "near future" surgery. FAC ¶ 59. Velasquez was finally admitted to the hospital for the operation on October 12, 2006, but only after he had contacted "Jon Wolff, supervising deputy Attorney General" and the prison law office on September 21, 2006. Dr. Flint performed the surgery on October 13, 2006. FAC ¶¶ 60-63.

On October 17, 2006, Velasquez was discharged to the prison yard "in spite of his weakened condition." He had a follow-up appointment with Dr. Flint the next day. At that time, he complained of continued muscle weakness, weight gain, back spasms, and limitations on his day-to-day activities. Dr. Flint told him he should be alright once his body healed from the surgery. FAC ¶¶ 65-68. On November 7, 2006, defendants Hall and Torres denied his (unspecified) appeal.*fn4 FAC ¶ 69. He thereafter submitted "repeated sick call request[s]," asking for sufficient pain medication and physical therapy "for the physical injuries sustained during his 16 month bout with a protruding hernia." FAC ¶ 70. He contends he continues to have back spasms, cannot shed the weight he gained, has not regained muscle strength, and is still in pain. FAC ¶ 74. He alleges "on information and belief" if he is not promptly provided with physical therapy, "he risks permanent disability and an indeterminate term of pain." FAC ¶ 75.

Based on the foregoing factual allegations, Velasquez alleges causes of action for deliberate indifference to his serious medical needs, in violation of the Eighth and Fourteenth Amendments, violations of his Due Process rights, and violations of California negligence law. FAC ¶¶ 76-79. He seeks a judgment declaring: defendants Barrios, Gray, Robertson, Levin, Pascua, and Hall violated his Due Process rights under the Fourteenth Amendment in the conduct of the medical appeal process, and Grannis and Scribner did so by sustaining the medical appeal results; defendants Gonzalez, Flint, Thomas, Pascua, Levin, Robertson, Gray, and Barrios violated his Eighth Amendment rights by failing and continuing to fail to provide medical care or "to take action to curb and/or remedy [his] pain and suffering;" defendants Thomas and Flint violated his Eighth Amendment rights by failing to prescribe adequate medication to relieve his pain and suffering, and Levin by sustaining their decisions; and all defendants violated the Eighth Amendment through unreasonable delay in scheduling and performing his hernia surgery. FAC p. 18. He also seeks injunctive relief in the form of an Order that he be immediately examined by a qualified physician,*fn5 that physical therapy or other follow-up treatment be arranged, and that he be prescribed medication to alleviate his pain. Finally, he seeks an award of monetary damages: in the amount of $100,000 "jointly and severally" against defendants Flint, Thomas, and Gonzalez; $10,000 "jointly and severally" against defendants Barrios, Gray, Robertson, Levin, Pascua, Torres, Hall, Grannis, and Scribner; and punitive damages in the amount of $20,000 each against defendants Gonzales, Flint, and Thomas, in the amount of $10,000 each against defendants Torrez, Hall, Scribner, and Grannis, and in the amount of $30,000 each against defendants Barrios, Gray, Robertson, Levin, and Pascua. FAC pp. 19-20.

B. Procedural Background

Velasquez presented for filing multiple motions while the Motions To Dismiss were under submission and around the time and after the two R&Rs were entered on May 23, 2008 and June 30, 2008. These attempted filings included: repeated requests for appointment of counsel; extensions of time to file Objections to the R&Rs; A "Motion To Amend" his objections to the first R&R, accompanied by supplemental medical records to augment his Objections to the R&R addressing the Collective Defendants' Motion; a Motion To Amend his California Tort Claims Act claim, accompanied by a new federal Complaint and a new state claim form, both of which he asked this Court to address simultaneously; and a Motion For Leave To File "And To Amend As To Doc. No. 32 and Doc. No. 57," also captioned "Objections To Report And Recommendation."

The Court accepted via Discrepancy Order Velasquez's supplemental medical records evidence, GRANTS the Motion to augment his Objections with that evidence, and has considered those materials in ruling on the R&Rs.*fn6 Dkt No. 83. The Court rejected via Discrepancy Order the new California Tort Claims Act Form attached to a proposed new federal Complaint (presented as a Motion to Amend Complaint As To California Tort Claim) because they appear to be an attempt to raise a new claim. Velasquez must present any such claim to the appropriate state agency to obtain an administrative result there. Dkt No. 80. This Court is without jurisdiction to decide such claims in the first instance. The additional attachment to that material, purporting to be a new Complaint, was rejected for filing as premature, and his associated request to consolidate the tort claim process with federal adjudication of his civil rights causes of proposes an improper procedure. Finally, the Court also rejected via Discrepancy Order the ambiguous purported "Objections To Report And Recommendation" document because, despite that caption language, the pleading makes no reference to the first R&R, precedes in time the filing of the second (Dr. Flint Motion) R&R, references the docket numbers of only the Motions To Dismiss, not his Objections or the R&R, and because the document is in fact, as stated in its first sentence, an "Amended Complaint," not Objections to an R&R. Dkt No. 81.

The Collective Defendants' Motion was filed December 28, 2007. Dkt No. 32. The R&R deciding the Collective Defendants' Motion was filed May 23, 2008. Dkt No. 58. Velasquez filed Objections to that R&R on June 19, 2008, combined with a Motion For Leave To Amend, reasserting his need for appointed counsel. Dkt No. 69; see also Dkt No. 75. His Objections to the recommended disposition of that Motion are comprised solely of contentions he can "prove all his claims if given the opportunity to move forward." Dkt No. 69 p. 1. He relies on his proposed "Motion To Amend" in support of that argument, a filing the Court rejected for the reasons discussed above. Any new tort claim he believes he can pursue must proceed in the normal course through the state's administrative system before it is ripe for adjudication here, assuming he can establish a constitutional violation associated with the tort, irrespective of any alleged "relationship" to the FAC in this action. The only substantive legal argument he advances in his Objections purports to rely on Estelle v. Gamble, 429 U.S. 97, 104 (1976) and the federal Constitution for the proposition: "a deliberate indifference claim may be stated when prison officials ignore[] the directives of the inmate's physician" because "government has obligation to provide medical care for those whom it is punishing by incarceration."*fn7 Dkt No. 69 pp. 1-2. Respondent filed no Reply.

Dr. Frank B. Flint's Motion was filed April 30, 2008 (Dkt No. 55), superseded by Corrected/Amended Motion filed May 1, 2008 ("Amended Motion" Dkt No. 57). Velasquez filed no Opposition. The R&R deciding Dr. Flint's Motion was filed June 30, 2008. Dkt No. 70. The deadline to file Objections to that R&R passed on July 31, 2008, with none filed. Velasquez subsequently requested an extension of time to file Objections to that R&R, which the Court granted on August 5, 2008, extending his deadline to August 15, 2008. He missed the August 15, 2008 extended deadline, but attempted a belated filing of a document captioned "Objections To Report And Recommendation" which purports to inform the Court he has "corrected" the error identified in the R&R associated with a state claims procedure, and again asks for leave to amend his complaint and for more time to respond. The result of any pending state administrative claim can only form the subject matter of a future cause of action not yet ripe for federal adjudication.

II. DISCUSSION

A. Legal Standards

1. Motions To Dismiss

A FED. R. CIV. P. ("Rule") 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S.Ct. 1955, 1964 (May 21, 2007), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," those allegations must be enough to raise a right to relief above the speculative level." Id. at 1964-65. "[S]ome threshold of plausibility must be crossed at the outset" before a case is permitted to proceed. Id. 127 S.Ct. at 1966 (citation omitted), abrogating the formulation in Conley, 355 U.S. at 45-46. Rule 12(b)(6) dismissal does not require appearance, beyond a doubt, that plaintiff can prove no set of facts in support of a claim that would entitle the plaintiff to relief.*fn8 "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, 'this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.' " Id. (citations omitted).

Thus, a complaint may be dismissed when it presents a cognizable legal theory, but fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Dismissal is also warranted when the complaint lacks a cognizable legal theory. Robertson,749 F.2d at 534; see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). In determining whether the complaint states a claim, the court assumes the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party, including all reasonable inferences to be drawn from those facts. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Cedars-Sinai Medical Center v. National League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); see Transphase Systems, Inc. v. Southern California Edison Co., 839 F.Supp. 711, 718 (C.D. Cal. 1993) (the court does not "need to accept as true conclusory allegations . . . or unreasonable inference") (citation omitted); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). When a Rule 12(b)(6) motion is granted, leave to amend is ordinarily denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Cahill, 80 F.3d at 339 (denial of leave to amend upheld as granting leave would have been futile). In examining a claim's sufficiency, as opposed to its substantive merits, "a court may [ordinarily] look only at the face of the complaint to decide a motion to dismiss." Van Buskirk v. Cable Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). However, a court conducting Rule 12(b)(6) review "may consider evidence on which the complaint ...


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