The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Sandipkumar Tandel ("Plaintiff") seeks redress for several federal and state law claims against various named Defendants, including the County of Sacramento ("County"), Sheriff of Sacramento County, John McGinness ("McGinness"), Undersheriff and Jail Captain Michael Iwasa ("Iwasa"), Chief of Sacramento County Jail Correctional Health Services Ann Marie Boylan ("Boylan"), Interim Medical Director of Sacramento County Jail Correctional Health Services Asa Hambly, M.D. ("Hambly"), Medical Director of Sacramento County Jail Michael Sotak, M.D. ("Sotak"), Director of Nursing Shelly Jordan ("Jordan"), Susan Kroner, R.N. ("Kroner"), Agnes R. Felicano, N.P. ("Felicano"), James Austin, N.P. ("Austin"), Richard L. Bauer, M.D. ("Bauer"), Gregory Sokolov, M.D. ("Sokolov"), Keelin Garvey, M.D. ("Garvey"), Glayol Sahba, M.D. ("Sahba"), Chris Smith, M.D. ("Smith"), Hank Carl, R.N. ("Carl"), Sergeant Tracie Keillor ("Keillor"), Deputy Pablito Gaddis ("Gaddis"), Deputy John Wilson ("Wilson"), Deputy Jacoby ("Jacoby"), and Deputy Medeiros ("Medeiros"). Plaintiff alleges that Defendants' conduct violated his civil rights during Plaintiff's detentions at the Sacramento County Main Jail from February 7, 2007 to May 20, 2007 and from March 23, 2010 to May 10, 2010. Plaintiff further alleges a claim under the Americans with Disabilities Act, as well as state common law claims, as a result of the treatment he received during the two aforementioned incarcerations.
On May 4, 2011, this Court granted Defendants' Motion to Consolidate the case regarding the alleged 2007 incidents with the subsequently filed case, which alleged various claims stemming from Plaintiff's incarceration in 2010. [ECF No. 26.] Defendants moved to dismiss certain portions of both actions, and those motions were granted in part and denied in part by Orders filed on February 21, 2012, and February 23, 2012. [ECF Nos. 68, 69.] Plaintiff was accorded leave to amend and was directed to file a single, unitary complaint encompassing both incarcerations. In his resulting Consolidated Second Amended Complaint ("CSAC"), Plaintiff seeks general and special damages, punitive damages, damages for future lost earnings and lost earning capacity, other proven losses, attorneys' fees and costs and declaratory relief.
Presently before the Court is the Motion to Dismiss of Defendants County, McGinness, Boylan, Sotak, Kroner, Felicano, Austin, Hambly, Keillor, Gaddis, Sahba, Bauer and Wilson (collectively "County Defendants"). (See County Defs.' Mot. to Dismiss Pl.'s Cons. Sec. Am. Compl. ["County MTD"], filed June 28, 2012 [ECF No. 80].) Also before the Court is Defendants Sokolov and Garvey's separately filed Motion to Dismiss and/or Motion for a More Definitive Statement. (Defs.' Garvey and Sokolov's Mot. to Dismiss and For More Def. Stmt. ["Sokolov MTD"], filed May 31, 2012 [ECF No. 76].) Also presently before the Court is the County Defendants' Motion to Strike. (See County Defs.' Mot. to Strike ["MTS"], filed June 28, 2012 [ECF No. 81].) The Parties stipulated to dismissing Defendant Garvey on May 14, 2012. [ECF No. 82.] Defendant Sokolov filed a Statement of Non-Opposition to County Defendants' Motion to Dismiss and Motion to Strike. [ECF No. 88, 89.] County Defendants filed a Statement of Non-Opposition to Defendants Sokolov and Garvey's Motion to Dismiss and/or for a More Definite Statement. [ECF No. 83.]
For the reasons set forth below, County Defendants' and Sokolov's motions are granted in part and denied in part.*fn1
On February 7, 2007, Plaintiff was arrested and incarcerated at the Sacramento County Main Jail ("the Jail") as a pre-trial detainee. Plaintiff alleges that because of his dark skin color, he was housed with the African-American inmates. On April 27, 2007, Plaintiff suffered a head injury as a result of a racial altercation at the Jail. Plaintiff was sent to the Emergency Room at the Doctor's Center in Sacramento, where Dr. Gray, M.D., treated Plaintiff's injury by cleaning and suturing the wound and vaccinating Plaintiff for Tetanus. The same day, Dr. Gray sent Plaintiff back to the Jail with instructions to remove the sutures in five days, leaving the wound open to air and keeping the wound clean. Upon Plaintiff's return to the Jail, he was seen by the Jail's medical personnel who evaluated Plaintiff, noted the treatment and vaccination, and referred the matter to a doctor. Plaintiff informed Jail medical personnel that he had a headache. Plaintiff alleges that Defendant Hambly reviewed Plaintiff's chart on April 30, 2007.
After returning to the Jail, Plaintiff was placed into Administrative Segregation, where he remained for approximately two weeks. Plaintiff alleges that the unit where he was housed was an indirect supervision unit and that, if he wanted to communicate with the staff, he had to push the call button in his cell.
Plaintiff claims that many of his calls went unanswered, and that when the calls were answered, he was told "we are working on it" and to "stop using the call button," and finally to "stop complaining." Eventually, the Jail staff stopped answering Plaintiff's calls altogether. Plaintiff further alleges that, without running water in his cell and regular showers, he could not keep his wound clean as prescribed by Dr. Gray.
Plaintiff was moved to a regular cell and immediately requested medical care. Defendant Hank allegedly saw Plaintiff on May 13, 2007. Plaintiff informed Hank that he had been suffering from headaches for the past four days. Hank consulted with Defendant Dr. Smith who ordered the stitches removed and gave Motrin to Plaintiff.
On or about May 14, 2007, Plaintiff again sought medical attention, complaining of headaches, sensitivity to light and a nasal drip. Plaintiff was examined by a nurse, Jim Austin, and was returned to his cell. On or about May 17, 2007, Plaintiff collapsed while taking a shower when he lost control of his legs. Defendant Officer Gaddis responded to Plaintiff's request for help, but allegedly failed to use the radio to properly alert medical and custody staff of the emergency. According to Plaintiff, Gaddis also failed to file an incident or casualty report following the incident in violation of Jail policy.
When Plaintiff was wheeled in a wheelchair for evaluation, he told Defendant Hank about his unexplained loss of use of his extremities and collapse. Plaintiff alleges that Hank failed to conduct an adequate medical assessment of a patient presenting with an apparent spinal cord injury or neurological disorder.
Carl ordered Plaintiff returned to his cell without arranging for any medical follow up.
On May 18, 2007, Plaintiff had a sudden and acute loss of vision in his left eye and started noticing that he was not able to move his lower extremities. He was also suffering from urinary retention and constipation. He repeatedly rang the emergency bell to summon help and informed the officers on duty that his legs did not work, that he could not urinate and that he was going blind, but was told to stop using the call button and that "these things would not kill him."
On May 20, 2007, at 11:44 a.m., Defendant Carl saw Plaintiff and referred him to see Defendant Dr. Smith. Smith saw Plaintiff at 12:30 p.m., but allegedly "failed to provide any meaningful evaluation of Tandel's medical condition." At 9:45 p.m., Dr. Horowitz evaluated Plaintiff. Plaintiff claimed to be suffering from vision loss, an inability to move or control his extremities, get up to "void or defecate," and other neurological impairments. Dr. Horowitz sent Plaintiff to a local emergency room where he was found to have an expansive lesion in the spine and brain involvement.
On May 21, 2007, Plaintiff was admitted to the University of California, Davis, Medical Center ("UCD"). Upon admission, Plaintiff was found to have bilateral lower extremity paraparesis, vision loss, weakness in his upper extremities, constipation, renal insufficiency and neurogenic bladder, fever and elevated white blood cell count.
Because Plaintiff's medical history allegedly did not accompany him to the hospital, the UCD treating physicians were unaware of the treatment already rendered to Plaintiff, but the physicians immediately commenced procedures for Central Nervous System ("CNS") disorders.
UCD diagnosed Plaintiff with Acute Disseminated Encephalomyelitis ("ADEM"). ADEM is a neurological disorder characterized by inflammation of the brain and spinal cord caused by damage to the myelin sheath. Vaccination for Tetanus is allegedly a known cause of ADEM. Upon further testing at Stanford University Medical Center, Tandel's diagnosis was ultimately adjusted to include the related neuroimmunologic disorder of the CNS known as Neuromyelitis Optica ("NMO"). NMO attacks the optic nerve and a person with NMO is at risk for multiple attacks.
Plaintiff alleges that due to the failure to provide timely treatment, he suffered permanent and complete T6 paraplegia with bilateral, severe neuropathic pain and neurogenic bladder and bowels. While Plaintiff's condition improved with treatment, he still remains dependent for his activities in daily living and must use a catheter and diaper. Plaintiff alleges ongoing serious bouts of depression and emotional distress.
In 2007, Plaintiff was released from the Jail because of the nature and severity of his condition. Following his release, Plaintiff achieved significant medical improvement with appropriate treatment through UCD.
In 2009, Plaintiff filed a lawsuit against the County and a number of individual defendants under 42 U.S.C. § 1983, alleging his civil rights' violations during the 2007 detention. (See Pl.'s Second Am. Compl., Case No. 2:09-cv-0842-MEC-GGH [ECF No. 43].)
On March 23, 2010, Plaintiff was again arrested and detained as a pretrial detainee at the Jail. At the time of his 2010 arrest, Plaintiff required a wheelchair and was unable to move from the nipple line down. Plaintiff's medical record allegedly indicates that during the 2010 detention, all Defendants were aware of Plaintiff's serious neurologic autoimmune disease and were aware that Plaintiff required appropriate treatment. According to Plaintiff, Defendants were also aware that Plaintiff suffered from osteoporosis and depression with suicidal ideation. Plaintiff alleges that, for the entirety of his 2010 incarceration, Defendants denied Plaintiff necessary medical treatment despite Plaintiff's repeated requests for such treatment.
Plaintiff alleges that he requested but was not provided enough catheters to adequately relieve his bladder; requested but was denied adequate and timely suppositories and pads; and was not provided adequate medication to control his pain. As a result, Plaintiff allegedly routinely urinated on himself and his clothes, was left waiting for assistance in soiled clothes, did not have bowel movements for days and was in severe pain. Defendant Bauer allegedly advised Plaintiff to reuse the catheters, thereby increasing the risk of infection.
On March 25, 2010, Defendant Sahba allegedly placed Plaintiff on a suicide watch. Plaintiff was placed on a mattress on the floor without his clothes. Defendants Sokolov and Sotak allegedly were aware of this situation. According to Sokolov, the Jail's psychiatric unit was unable to handle a patient with his medical condition and who required catheters. Therefore, Defendants Sokolov, Sahba and Sotak knowingly left Plaintiff "to lay naked, on a mattress on the floor, unable to adequately move, unable to reach the call button, in severe pain, under-medicated, and without adequate supplies or treatment to urinate or defecate cleanly and regularly for a period of three days." (CSAC ¶ 172.) As a result, Plaintiff allegedly urinated on himself numerous times, was unable to have regular bowel movements and developed bed sores. Because custodial officers at the Jail allegedly routinely interfered with Plaintiff's access to medical care, Plaintiff's bed sores worsened.
On April 9, 2010, Plaintiff complained to the Jail's medical staff of burning on the tip of his penis and so Sahba ordered another medical prescription, a double mattress and a urine culture and a test for sexually transmitted diseases. Plaintiff's neighboring inmate pressed the call button on Plaintiff's behalf several times after hearing Plaintiff screaming in agony, but the medical staff never responded. Plaintiff received medical care on April 11, 2010. On April 13, 2010, Defendant Bauer prescribed an antibiotic to Plaintiff to treat a bed sore on his left leg and a urinary tract infection.
By April 22, 2010, Plaintiff had developed blurry vision in his left eye over the prior two weeks. Defendant Kroner allegedly performed a vision exam but failed to request a necessary neurological referral and instead referred Plaintiff to be seen by a doctor at some point in the future. On April 23, Plaintiff again complained of penile burning, pain in his eye and vision problems. On April 23, 2010, Defendant Sahba documented Plaintiff's left eye blurriness with history of ADEM. Sahba requested urinalysis and blood work with follow-up in two weeks. Sahba also prescribed an antifungal agent to Plaintiff.
Defendant Bauer allegedly recorded that because Plaintiff's pain had not been well-controlled by Norco-5, he prescribed Morphine and increased his Norco-5 prescription to control Plaintiff's pain. On May 4, 2010, Plaintiff reported to Sotak that he had been experiencing pain, weight loss and episodes of double vision, but Sotak just ordered physical therapy. On May 10, 2010, Sotak transferred Plaintiff to UCD where he was diagnosed with acute right optic neuritis.
Plaintiff alleges that medical Defendants' deliberate indifference resulted in and/or increased the acuteness of his attack and accelerated the recurrence of his disease, which resulted in irreversible damage to new areas of myelin, causing cumulative and permanent disfigurement and disability, as well as decreasing Plaintiff's future opportunity for rehabilitation and decreasing his life expectancy.
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn3 all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The Court must also assume that "general allegations embrace those specific facts that are necessary to support a claim." Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). 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 a fair notice of what the [. . .] claim is and the grounds upon which it rests.'" Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation."
Ashcroft v. Iqbal,129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). The Court also is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than a "statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).
Furthermore, "Rule 8(a)(2) . . . requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A court granting a motion to dismiss a complaint must then decide whether to grant a leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party . . . carries the greatest weight." Eminence Capital, 316 F. 3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F. 2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted).
B. Motion for a More Definitive Statement
Before interposing a responsive pleading, a defendant may move for a more definitive statement "[i]f a pleading...is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading...." Fed. R. Civ. P. 12(e). A Rule 12(e) motion is proper when the plaintiff's complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted.
Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262 F. Supp. 2d 1088, 1099 (E.D. Cal. 2001).
Due to the liberal pleading standards in the federal courts embodied in Rule 8(e) and the availability of extensive discovery, courts should not freely grant motions for more definitive statements. Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). Indeed, a motion for a more definitive statement should be denied unless the information sought by the moving party is not available or is not ascertainable through discovery. Id.
The Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (Fed. R. Civ. P. 12(f).) "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)(rev'd on other grounds Fogerty v. Fantasy, Inc., 510 U.S. ...