The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND PURSUANT TO FED.R.CIV.P. 12(b)(6) AND FED.R.CIV.P. 56(c) [Doc. No. 9] FOR SUMMARY JUDGMENT
Jesus Argelio Machin ("Plaintiff"), a former criminal pretrial detainee at the Metropolitan Correctional Center ("MCC") in San Diego, is proceeding in pro se and in forma pauperis with this civil action, which he filed pursuant to 42 U.S.C. § 1983.
Plaintiff claims to have been injured on August 11, 2005 at MCC while he was on kitchen duty and under the supervision of Defendant Kevin Costa, erroneously sued as "Officer Costas."*fn1 Plaintiff claims Costa violated his right to be free from cruel and unusual punishment, intentionally inflicted severe mental and emotional distress upon him and was negligent in violation of the Eighth Amendment and several provisions of the California Penal Code. (Compl. at 3-4.) Plaintiff seeks injunctive relief in the form of a grand jury investigation as well as "reasonable fees" and punitive damages. (Id. at 5.)
On July 31, 2009, Defendant Costa filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)(6) and for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 9]. On August 7, 2009, in an abundance of caution, the Court provided Plaintiff with written notice of the requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) [Doc. No. 10], despite the fact that he was not incarcerated at the time he filed this action, nor does the docket reflect he is currently incarcerated. Nevertheless, Plaintiff has failed to file any Opposition.
First, the Court notes that Plaintiff includes both the MCC and John Does 1-10 in the caption of his Complaint as Defendants. However, Plaintiff has not effected service upon the MCC, nor has he identified or served any of the Does. Because Plaintiff has failed to effect service of the summons and Complaint upon these purported Defendants, the Court has no personal jurisdiction over them and they are not considered parties to this action. See FED.R.CIV.P. 4(m); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) ("In the absence of service of process (or waiver of service by the defendant)," under FED.R.CIV.P. 4, "a court ordinarily may not exercise power over a party the complaint names as a defendant." ); see also Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) ("Before a... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.").
Thus, to the extent Plaintiff's Complaint includes allegations against the MCC and John Does 1-10, the Court dismisses the action for insufficient service and lack of personal jurisdiction. See FED.R.CIV.P. 4(m); Murphy Bros., 526 U.S. at 350; Omni Capital, 484 U.S. at 104.
On August 11, 2005, Plaintiff was a criminal pretrial detainee at MCC. (Compl. at 3; Def.'s Exs. A & B.) A few weeks before, Plaintiff was examined by MCC medical personnel, who noted that while Plaintiff had undergone seven surgeries on his left thumb between 1982 and 1988, he was nevertheless "qualified for regular [work] duty." (Def.'s Ex. H.) On August 4, 2005, Plaintiff was assigned to work in the MCC kitchen under the supervision of Defendant Costa, the Cook Supervisor. (Compl. at 3, 8; Defs.' Ex. D, Inmate Work Detail; Ex. E, Decl. of Kevin A. Costa [hereafter "Costa Decl."] ¶ 2.) Plaintiff claims he was "comfortable... washing dishes," but Costa "transferred [him] to another line of work," even though Plaintiff informed Costa of his previous surgeries. (Pl.'s Affidavit in Supp. of Compl. [hereafter "Pl.'s Ex. A"] at 9.) Plaintiff claims Costa threatened to place him in the hole if he didn't follow orders, so he "continue[d] to work with extreme caution." (Id.) Despite his caution, however, Plaintiff claims "one of [his] co-worker[s] push[ed] a food cart," and it "collid[ed] with [his] left hand and hit [his] left thumb," causing him "unimaginable pain." (Id.)
Plaintiff informed Costa he was in "great pain and... need[ed] to see... medical personnel." (Pl.'s Ex. A.) Plaintiff alleges Costa "just told [him] to sit down." (Id.) After "more than one hour," Plaintiff claims he "beg[ged]" Costa to take him to the "medical floor," but Costa replied, "Your hand is not... falling [off]," and that he would "bring [Plaintiff] to the Dr. when [he] fel[t] like it." (Id.) Plaintiff claims he was injured at 11:45 a.m, and to have waited two hours "in great pain" before Costa transported him to medical, (id.); however, the MCC's medical records report Plaintiff was injured at 1:30 p.m. and transported to Health Service at 2:40 p.m. (Def.'s Ex. F.)
Defendant Costa does not remember Plaintiff or the incident in the kitchen on August 11, 2005. (Def.'s Ex. E [hereafter "Costa Decl."] ¶ 3.) However, as both a Bureau of Prison's ("BOP") employee and a Cook Supervisor, Costa has been trained on BOP medical emergency procedures. (Id. ¶¶ 8-9.) Costa claims that in an emergency, "such as when an inmate is unconscious or is bleeding profusely, it is [his] custom and practice to push [his] body alarm" and to "initiate preliminary first aid until medical personnel arrive." (Id. ¶ 10.) In non- emergency situations, Costa "call[s] the Health Services Department," and describes the incident to medical personnel" who ask him questions in order to assess the severity of injury and investigate whether any security concerns prevent Plaintiff's transport to Health Services. (Id. ¶ 11.) If no security concerns exist, Costa calls an escort officer. (Id.) Costa claims he has "no control over when the escort officer reports to the kitchen," but once one does, he "give[s] the officer the inmate's work crew card, which contains the inmate's key information and picture." (Id.) Once an injured inmate is escorted to Health Services, Costa claims, as a Cook Supervisor, he has no further involvement in the inmate's medical problem. (Id.) Thus, Costa asserts that while he does not recall Plaintiff or his injury, he "would not have been involved in giving [him] any medical care," "would not have had any more interactions with him, unless he came back to work in the kitchen," and would have had "no reason" to "delay reporting [Plaintiff's] injury or assisting him in obtaining medical care." (Id. ¶ 12.)
For his part, Plaintiff claims that once he arrived at Health Services on August 11, 2005, "one of the nurses look[ed] at his hand," "gave [him] a pill," and "put a bandage and wrap around [his] thumb," before sending him back to his housing unit. (Pl.'s Ex. A.) Plaintiff alleges the medication "did not stop the pain." (Id.) Plaintiff refers only once more to his thumb injury and Defendant Costa: on August 17, 2005, he claims to have been "recalled to work in the kitchen," and threatened with seclusion if he did not follow orders. (Id.) Plaintiff claims he still suffered from pain and a swollen thumb, which he reported to "the employee of the facility." (Id.) Plaintiff asserts that while he was "forced" to report for kitchen duty, he "just s[a]t in pain... not able to do anything." (Id.) Later on the same day Plaintiff claims to have been stuck in a hot elevator for two hours along with 24 other individuals, and alleges Defendant Costa "did not even use the radio in his possession to get help." (Id.)
Dr. Debra Lucy, the Clinical Director of the Health Services at MCC, however, has submitted a sworn Declaration recounting Plaintiff's medical treatment, as well as copies of the medical records which chronicle his care from the date of the incident, August 11, 2005, through December 9, 2005. (Def.'s Ex. G, I-Q, S-U.) According to Dr. Lucy, Plaintiff was first assessed by a physician's assistant, Virgilio Camagay, in the Health Services Unit on August 11, 2005.
(Def.'s' Ex. G ¶ 6; Def.'s Exs. F, J.) Camagay noted minimal swelling of Plaintiff's left thumb with a limited range of motion, no bruising, no rupture and no active bleeding. (Def.'s Ex. G ¶ 6.) An x-ray, taken of Plaintiff's left thumb that same day showed "no acute fracture," but did show Plaintiff had a "fusion" of the "metacarpophalangeal joint" as the result of previous surgeries as well as an implanted "plate and screws for stabilization." (Id; see also Def.'s Ex. I "Radiological Consultation Request/Report" dated August 11, 2005.) Plaintiff was prescribed 800 mg of Ibuprofin three times a day to "reduce swelling and pain." (Def.'s Ex. G ¶ 6.)
On August 16, 2005, Plaintiff returned to Health Services complaining of increased pain and throbbing in his left thumb. (Id. ¶ 7; see also Def.'s Ex. K "Chronological Record of Medical Care" dated August 16, 2005.) Plaintiff's thumb was no longer swollen, but "redness measuring 3 mm was noted in the web between [his] thumb and index finger." (Def.'s Ex. G ¶ 7.) Plaintiff was prescribed an anti-steroidal medication, given a bandage and was referred to a physician. (Id.)
On August 25, 2005, Plaintiff again returned to Health Services complaining of "throbbing pain in his left thumb" radiating into his arm. (Def.'s Ex. L.) Plaintiff's thumb was again swollen and a blister was noted, as well as an abrasion, discharge and a bruise around the base of the thumb. (Def.'s Ex. G ¶ 8.) At this time, Plaintiff was "diagnosed with an infection," "administered an injection to combat the infection," "prescribed oral antibiotics," and had his wound dressed. (Id.) Another x-ray and lab tests were ordered. (Id.; see also Def.'s Exs. M, N.) Plaintiff's x-ray results did not differ from those taken on August 11, 2005. (Def.'s Ex. G at ¶ 8; Def.'s Ex. N.) Plaintiff's lab culture, taken on August 25, 2005 and released on August 27, 2005, confirmed he had a staph infection in his left hand wound, but "no MRSA [was] isolated." (Def.'s Ex. M.)
On August 26, 2005, Plaintiff returned to Health Services, and had removed the dressing from the day before. (Def.'s Ex. G ¶ 9, Def.'s Ex. L.) Dr. Lucy claims Plaintiff was directed not to remove the dressing because it could worsen his infection, which nevertheless showed signs of improvement-- "no discharge, less swelling and less redness." (Id.) Plaintiff's hand was then soaked in betadine, a topical antiseptic. (Id.) Plaintiff was thereafter examined every day in Health Services from August 26, 2005 through September 14, 2005, to "check the status of the infection." (Id.) As of August 29, 2005, Plaintiff's hand showed no "open areas" or drainage. (Id. ¶ 12.)
On August 26, 2005, Dr. Lucy also authorized Plaintiff's referral to an orthopedic surgeon who specializes in hand surgery. (Def.'s Ex. G ¶ 10, Def.'s Ex. P.) Dr. Lucy claims she did not send the referral to the Utilization Review Committee's ("URC") because as Chair of the URC, she "knew the referral would be approved." (Def.'s Ex. G ¶ 10.) Dr. Lucy claims this accelerated Plaintiff's referral "by three to four weeks." (Id.)
Plaintiff's surgical referral was coordinated through the United States Marshal Service, which was responsible for providing an escort. (Id. ¶ 11.) On September 15, 2005, Plaintiff was examined by Dr. Jose Otero, an orthopedic surgeon at Alvarado Hospital, (Id. ¶¶ 11, 13; Def.'s Ex. O.) According to Dr. Lacy, Dr. Otero "diagnosed Plaintiff with nerve damage as a result of the previous surgeries," and "recommended surgery to remove the hardware implanted during those surgeries." (Def.'s Ex. G ¶ 13.)
On October 5, 2005, Dr. Otero performed surgery on Plaintiff's left hand. (Id., Def.'s Ex. Q.) During the surgery, Dr. Otero found a "rigid, severely scarred thumb, both on the dorsum and on the palmar side." (Def.'s Ex. Q.) Otero removed a "plate and multiple screws," although three screws broke as he was attempting to remove them, and the shafts had to be left in the bone. (Id.) Dr. Otero further noted severe scarring, tendon, nerve and tissue damage, some of which he attributed to "previous multiple infections." (Id.) While "the extent of the pre-existing damage limited some... surgical options that would have otherwise been attempted," (Def.'s Ex. G ¶ 13), Dr. Otero was able to repair a dislocated extensor pollicis longus tendon, perform neurolysis on some digital nerves and to use some soft tissue from the thenar eminence and palm to cover the nerves and isolate them from the heavily scarred skin. (Def.'s Ex. Q.) Afterwards, Otero applied a fiberglass cast "from the tip of the thumb to the elbow area in standard fashion." (Id.) Dr. Otero's operative notes indicate the procedure was "well tolerated" and Plaintiff was sent to recovery in satisfactory condition. (Id.)
Plaintiff returned to Dr. Otero for a surgical follow-up consultation on October 21, 2005. (Def.'s Ex. G ¶ 14, Def.'s Ex. S.) Dr. Otero noted Plaintiff had "no complaints," and was "doing well." (Def.'s Ex. S.) Dr. Otero recommended a follow-up appointment in two weeks in order to remove Plaintiff's cast. (Id.) Dr. Lucy further claims Plaintiff was recommended for, and provided physical therapy "in house." (Def.'s Ex. G ¶ 14.)
On November 23, 2005, Dr. Lucy again referred Plaintiff to Dr. Otero because he continued to complain of pain in his left hand. (Id., Def.'s Ex. T.) On December 9, 2005, Dr. Lucy claims Plaintiff was examined by Dr. Otero, who recommended that therapy continue and a return follow-up appointment in four weeks. (Def.'s Ex. G ¶ 14, Def.'s Ex. U.) However, Plaintiff was transferred from MCC prior to that time, and MCC was "no longer involved in [Plaintiff's] medical care." (Def.'s Ex. G ¶ 14.)
Plaintiff has attached to Complaint, however, copies of medical records post-dating his transfer from MCC which indicate an ongoing course of medical examinations, x-rays and treatment for his hand at both FMC Fort Worth and FCI Taft. See Compl. Ex. B [Doc. No. 1-2] at 60-69, [Doc. No. 1-1] at 1-30, 52-54, 56-80, 110-119.
A. FED.R.CIV.P.12(b)(6) Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because Rule 12(b)(6) focuses on the "sufficiency" of a claim rather than the claim's substantive merits, "a court may [typically] look only at the face of the complaint to decide a motion to dismiss." Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Thus, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings, except for exhibits which are attached. SeeFED.R.CIV.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
A motion to dismiss should be granted if a plaintiff's complaint fails to contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556, 570).
While allegations of material fact are accepted as true and construed in the light most favorable to the nonmoving party, Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996), the court need not accept as true generic legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Iqbal, 129 S.Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 555 (on motion to dismiss court is "not bound to accept as true a legal conclusion couched as a factual allegation."). "The pleading standard Rule 8 announces does not ...