The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS' MOTIONS FOR
PARTIAL DISMISSAL BE GRANTED (ECF Nos. 15, 27) OBJECTIONS DUE WITHIN
FOURTEEN (14) DAYS
Plaintiff Taylor Gundy, a former state prisoner, initiated this action on June 21, 2012 pursuant to 42 U.S.C. Section 1983. (Compl., ECF No. 1.) This matter proceeds on Plaintiff's First Amended Complaint filed October 5, 2012. (First Am. Compl., ECF No. 11.)
In the First Amended Complaint, Plaintiff alleges Eighth Amendment medical indifference, state law medical malpractice, and state law failure to obtain medical attention. His claims arise out of Defendants' alleged failure to treat internal fixation hardware that erupted through the skin of his left ankle while he was incarcerated at Kern Valley State Prison ("KVSP"), ultimately resulting in staph infection, amputation of his left ankle joint, disfigurement and disability. (Id. at ¶ 1.)
Plaintiff names as Defendants (1) the California Department of Corrections and Rehabilitation ("CDCR"); (2) Sherry Lopez, Chief Medical Officer at KVSP; (3) Christopher Horton, Registered Nurse at KVSP; (4) Adriana Arambula, Physician's Assistant at KVSP; (5) Young Nam Paik, M.D., private physician contracted to KVSP;
(6) Pacific Orthopedic Medical Group, a private entity employing Defendant Paik ("Pacific Orthopedic"); and (7) DOES 1-50, employees and/or agents of KVSP and CDCR. (Id. at ¶¶ 8-15.)
Plaintiff seeks compensatory and punitive damages, medical expenses, attorneys fees, costs, and interest. (Id. at 28:4-15.)
Defendants Paik and Pacific Orthopedic filed their Answer to the First Amended Complaint on November 16, 2012. (Ans. Paik and Pacific Orthopedic, ECF No. 23.)
On October 26, 2012, Defendants CDCR and Lopez filed a Motion for Partial Dismissal of this action (CDCR/Lopez Mot. Dismiss., ECF No. 15), asserting as grounds (1) the CDCR is immune from suit in federal court and (2) Plaintiff's state tort claims can not be litigated because they were not timely presented. (CDCR/Lopez Notice Mot. Dismiss. at 2:3-5.)
Plaintiff filed Opposition to the CDCR/Lopez Motion on November 16, 2012. (Opp'n CDCR/Lopez Mot. Dismiss., ECF No. 24.)
Defendants Arambula and Horton filed a Motion for Partial Dismissal of this action on November 20, 2012 (Arambula/Horton Mot. Dismiss, ECF No. 27), likewise asserting as grounds that state tort claims were not timely presented. (Arambula/Horton Mot. Dismiss. at 1:28-2:2.)
Plaintiff filed Opposition to the Arambula/Horton Motion on December 28, 2012.
(Opp'n Arambula/Horton Mot. Dismiss., ECF No 31.)
Defendants filed a Reply to the Opposition on January 11, 2013. (Reply, ECF No. 32.)
The January 18, 2013 hearing was vacated and the matter taken under submission. (Order Vacating, ECF No. 33.) All pending motions for dismissal are now before the Court.
II. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff alleges that Defendants Lopez, Horton, Arambula, Paik and DOES 1-50 were wantonly indifferent and negligent; Defendants CDCR, Lopez, Horton, Arambula, Paik and the DOES violated a state law duty by wantonly failing to immediately summon medical care; and Defendant Pacific Orthopedic was wantonly negligent in training and supervising Defendant Paik. (First Am. Compl. at 16:10-27:28.)
On November 8, 2009, as the result of a motor vehicle accident, Plaintiff's left ankle was surgically reconstructed with internal fixation hardware.*fn1 (Id. at ¶ 16.) On November 12, 2009, Plaintiff was taken into custody at Los Angeles County Men's Central Jail. Plaintiff arrived at KVSP on March 26, 2010 (Id. at ¶ 18) and requested, per the advice of his original surgeon, an ankle brace and bone growth stimulator. (Id. at ¶ 53.) These requests were ignored. (Id.) Plaintiff's April 28, 2010 medical appeal of the issue was similarly ignored until September 20, 2010, and then it was denied. (Id. at ¶ 55.)
On June 29, 2010, Plaintiff informed DOE Defendant(s) that one of the surgical screws had torn through the skin of his left ankle, unraveling the fixation cabling and exposing surgical thread. (Id. at ¶ 21.) Plaintiff requested immediate medical assistance. (Id. at ¶ 23.) He was seen by a DOE medical staff member on July 2, 2010. X-rays and tests for infection were ordered. Plaintiff was given ointment and told the screw would have to be removed surgically. (Id. at ¶ 24.)
Defendant Paik examined Plaintiff on July 19, 2010, and advised that staph infection was setting in; he recommended to Defendant Lopez that Plaintiff have emergency surgery. (Id. at ¶ 25.) Defendant Lopez denied this request without explanation. (Id. at ¶ 26.) Plaintiff was told by Defendant Arambula that surgery was denied because of Plaintiff's then-planned November 23, 2010 release date. (Id. at ¶ 31.) According to Plaintiff, KVSP has a policy and practice of reducing costs by limiting or declining to provide medical care to inmates nearing release. (Id. at ¶ 31.)
Plaintiff filed numerous CDCR form requests for treatment over the next several weeks, but received no response. (Id. at ¶ 30.) His test results were lost. (Id. at ¶ 29.)
Plaintiff again saw Defendant Paik on August 30, 2010, the physician again confirmed the staph infection and, Plaintiff believes, he made a second request to Defendant Lopez for emergency surgery. (Id. at ¶¶ 33-34.) On September 2, 2010, Plaintiff had a follow-up visit with Defendant Horton, who agreed that Plaintiff required immediate surgery and who submitted a request for same, but who failed to summon immediate medical care. (Id. at ¶ 36.)
Plaintiff underwent surgery on September 22, 2010 for removal of all hardware from his left ankle. (Id. at ¶ 38.) By this time the staph infection had caused joint deterioration. (Id. at ¶ 40.) He was put on an aggressive course of treatment with antibiotics and morphine. (Id. at ¶¶ 42-43.) He was discharged back to KVSP on or about November 19, 2010 (Id. at ¶ 47), where his pain medication was soon discontinued. (Id. at ¶ 49.) His requests for pain medication were denied until February 2011. (Id. at ¶ 51.)
Plaintiff was released from KVSP on July 26, 2011. (Id. at ¶ 57.) Subsequently, he underwent three additional surgeries on his severely degraded left ankle, including amputation of the left ankle joint, bone fusion, irrigation and debridement, and skin grafting. (Id. at ¶¶ 58-63.) As a result he has great difficulty walking. (Id. at ¶¶ 49, 56, 58.)
Plaintiff filed a California governmental tort claim with the Victim Compensation and Governmental Claims Board ("VCGCB") on December 30, 2011. (Id. at ¶ 73.) The VCGCB accepted Plaintiff's claim form only "to the extent it asserts allegations that arise from facts or events which occurred during the six months prior to the date it was presented."*fn2 The VCGCB rejected those claims on February 16, 2012.*fn3
Plaintiff filed the instant lawsuit on June 21, 2012.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force
v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, the Court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003--04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels--Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910, cert. denied, 553 U.S. 1031.
1. Defendants' CDCR and Lopez
These Defendants argue that CDCR has Eleventh Amendment immunity from suit in federal court; and that Plaintiff's state tort claims against Defendant Lopez are untimely under California Government Code Sections 900.2, 910, 911.2 and 945.4, because they were was not presented until December 30, 2011, more than six months after Defendant Lopez's decision to delay surgery until September 22, 2010. (CDCR/Lopez P&A's in Supp. at 5:3-6:3.)
2. Defendants Arambula and Horton
These Defendants likewise assert that the state tort claims were not timely presented under California Government Code Sections 900.2, 910, 911.2 and 945.4 because Defendant Arambula told Plaintiff in July 2010 that his request for emergency surgery was denied and it was on September 2, 2010 that Defendant Horton allegedly failed to summon medical care. Plaintiff did not file his tort claim until ...