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Ricki Chipman v. Marcia F. Nelson

March 13, 2013



This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). All of the named defendants have moved to dismiss plaintiff's first amended complaint in one form or another. Specifically, defendants Enloe Medical Center ("EMC"), Brenda Boggs, and Marcia F. Nelson, M.D., move to dismiss plaintiff's first amended complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6) and, in the alternative, move for a more definite statement under Rule 12(e), Dckt. No. 76, as do defendant Joseph M. Mathews, M.D.,*fn1 Dckt. No. 79; defendant Julie Clark-Martin, Dckt. No. 80; defendants Gerard R. Valcarenghi, M.D., Dale J. Wilms, M.D., and Dinesh Verma, M.D., Dckt. No. 83; defendants Christi Calkins and Joanie O'Mahoney, Dckt. No. 85; defendants Eva Lew, M.D. and Mark Avdalovic, M.D., Dckt. No. 87; and defendant the Orange County dba Kindred Hospital Sacramento ("Kindred"), Dckt. No. 95. Defendant Judge Barbara S. Roberts moves to dismiss for failure to state a claim under Rule 12(b)(6) and for lack of jurisdiction under Rule 12(b)(1). Dckt. No. 77. Defendant Attila Kasza, M.D., moves to dismiss for failure to state a claim and for failure to join a necessary party and, in the alternative, moves for a more definite statement. Dckt. No. 78. Defendant Dirk Potter, Dckt. No. 94, and defendant Jane E. Stansell, Dckt. No. 96,*fn2 move to dismiss the first amended complaint for failure to state a claim and also move to strike under the anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions set forth in California Civil Procedure Code section 425.16.*fn3 Plaintiff opposes all of the motions. Dckt. Nos. 99-110.

For the reasons stated herein, plaintiff's entire first amended complaint should be dismissed under Rule 12(b)(6) for failure to state a claim.*fn4


Plaintiff, Ricki Chipman, alleges that she is a registered nurse in Washington State, and is the eldest daughter and heir of Mary A. Martin ("decedent"), who died on October 20, 2010. First Am. Compl. ("FAC"), Dckt. No. 74, at 3.*fn6 Prior to decedent's death, decedent suffered from Parkinsonism and early-stage dementia, and was being treated at EMC. Id. at 3-4. Because decedent was unable to make health care decisions on her own, plaintiff alleges that decedent's family designated plaintiff as the "Medical Decision Maker" in a signed and witnessed document. Id. Plaintiff alleges that "defendants" did not comport with health care informed consent standards for medical procedures, and when plaintiff disagreed with EMC staff on decedent's treatment plan, "a confrontational environment ensued, and the EMC medical staff no longer honored medical decision-making by plaintiff." Id. at 4.

Plaintiff alleges that EMC, its doctors, and its staff "conspired to remove plaintiff without sufficient or defensible cause as the medical decision-maker for [decedent]." Id., Pl.'s Ex. A. According to plaintiff, defendants Matthews (a surgeon and member of the Board of Trustees of EMC), Nelson (decedent's personal physician and Vice President of Medical Affairs for EMC), Clark-Martin (EMC's Litigation Prevention Attorney), and Boggs (EMC's Risk Manager) falsely accused plaintiff and her family of elder abuse, physical violence, and of interfering with EMC doctors and staff. Id., Pl.'s Ex. B. Based on those accusations, on July 2, 2010, EMC restricted plaintiff's family's visitation rights to 15 minutes per hour between the hours of 10:00 a.m. and 9:00 p.m., with no more than one visitor at a time. Id. at 4-5, Pl.'s Ex. C Plaintiff alleges that this "was intentionally designed by defendants to reduce scrutiny" on EMC's practices and to circumvent the proper process of obtaining informed consent from the designated health care decision-maker. Id. at 5. Plaintiff further alleges that if the allegations of elder abuse were true, defendants were required to report it, but no agency contacted her about the purported charges.*fn7 Id. Accordingly, plaintiff contends the accusations were intentionally defamatory and false, and were never reported. Id.

Plaintiff further alleges that defendants filed a Strategic Lawsuit Against Public Participation (hereafter "SLAPP") in order to circumvent informed consent. Id. Specifically, plaintiff alleges that on July 7, 2010, defendants filed a petition for a temporary restraining order ("TRO") and appointment of a temporary guardian for decedent, predicated on defamatory and false accusations. Id. at 6, Pl.'s Ex. D. Although it is unclear who precisely filed for injunctive relief as plaintiff's first amended complaint merely states that "defendants" filed the petition, plaintiff alleges that the petition included false statements from defendants Clark-Martin and Boggs. Id. The case was first heard as an ex parte motion in Butte County Superior Court by defendant Judge Barbara Roberts. Id. Plaintiff alleges that she was unaware of this hearing. Id. During the hearing, Judge Roberts appointed defendants Calkins and O'Mahoney as temporary guardians for decedent conservators and defendant Stansell as an attorney to represent decedent. Id. Plaintiff contends that those appointed individuals remained as decision-makers for decedent until her wrongful death. Id. Plaintiff contends that defendants Nelson, EMC, Matthews, Roberts, Clark-Martin, and Boggs violated plaintiff's due process rights under the Fifth and Fourteenth Amendments by hearing and issuing the restraining order ex parte. Id. at 7.

Plaintiff further alleges that defendant Dirk Potter, who was retained by plaintiff's sister, Lorraine Coots, as an attorney to help Ms. Coots gain conservatorship of decedent, became aware of the July 7 hearing hours before it took place, but made no effort to notify Coots or plaintiff, in violation of California Rule of Professional Conduct 3-500. Id. at 8. Plaintiff alleges that Potter's explanation for not informing them was that he "was swamped." Id.

At the July 7 hearing, Judge Roberts also set a status conference for July 15, 2010. Id. Plaintiff alleges that prior to that hearing, Potter drafted a stipulation which agreed with EMC's restrictions, which accepted defendants Calkins and O'Mahoney's appointment as temporary guardians of decedent, and which recognized defendant Stansell as decedent's attorney. Id. Plaintiff alleges that this document was presented to plaintiff's family only five minutes before the July 15 hearing and when plaintiff was not present, and that Potter "coerced [plaintiff's] sisters to sign the stipulation against [their] will (as they did protest) and under the duress of last minute time restraints" by telling them that they needed to sign the document if they wanted to see their mother. Id. at 8-9. Plaintiff alleges that it was improper for Potter to push her family to sign this document, and that Potter was really representing the interests of defendant EMC. Id. at 9. Plaintiff claims that Potter then said "Now I gotta get [plaintiff] to sign one," but that plaintiff never signed the document; nonetheless, plaintiff alleges she was forced to abide by it. Id. at 9.

Plaintiff further alleges that the SLAPP lawsuit against her was also intended to obscure defendants' substandard care in order to avoid being sued for the following alleged malpractice. Id. at 9-12. Plaintiff alleges that, prior to the litigation, on May 6, 2010, a nurse misplaced a PICC intravenous line in decedent's right forearm, and the nurse was concerned about a possible blood clot. Id. at 9. Valcarenghi ordered two anticoagulants; later, Valcarenghi ordered a hold on the anticoagulant, but the hold was not put in place. Id. at 9-10. Later that day, decedent suffered gastro-intestinal bleeding, and required blood transfusions and stabilization. Id. at 10.

Plaintiff alleges that Valcarenghi "documented that this emergency was secondary to anticoagulant administration." Id. On May 19, decedent began to bleed once more, and Matthews removed more than half of decedent's jejunum (small bowel where food is digested) in response to the bleeding. Id. Plaintiff alleges that this operation was dangerous and harmful because the doctors did not first address her anti-coagulation status, which had been (according to plaintiff) at abnormal levels due to the use of anticoagulants. Id. Plaintiff further claims that these actions were below "published medical standards," and that decedent "would never absorb nutrition the same again." Id.

Plaintiff also alleges that on June 14, 2010, defendant Kasza falsified medical records by falsely reporting that decedent had aspirated, causing a need for CPR. Id. According to plaintiff, she witnesses decedent's airway being blocked by a mucous plug and that Kasza's false report "took the blame off EMC, as [decedent] did aspirate during their aggressive CPR, causing aspiration pneumonia in [her] already compromised lungs." Id. at 11. Plaintiff contends that Valcarenghi "had caused an earlier aspiration and code secondary to giving [decedent] medication that [plaintiff] had advised, if given, could cause her to stop breathing." Id. Plaintiff alleges that she informed defendant Wilms of a "proven procedure" that would give decedent "great relief" (a thorencentesis), but Wilms would not conduct the procedure. Id. According to plaintiff, as fluid continued to build in decedent's lungs, decedent suffered a transient atrial-fibrillation, causing "rapid breathing, heart rate of 130s, and great discomfort and stress." Id. at 11-12. Plaintiff alleges that, as a result, Wilms performed an emergency thorencentesis, which was successful. Id. at 12.

Plaintiff further alleges that the EMC restrictions "constituted a form of elder abuse by defendants." Id. Plaintiff contends that during her hospitalization at EMC, decedent was in mortal fear and was denied the comfort and love of her family. Id. She was also "probed and manipulated coldly by strangers, [and] subjected to [a] torturous, needless, and virtually endless set of procedures." Id. Plaintiff contends this is a form of kidnaping and should be construed as false imprisonment, and at the very least should be deemed elder abuse by defendants. Id.

Plaintiff contends that the only way she believed she could save her mother was to have her transferred to a different hospital. Id. Therefore, plaintiff arranged transfers to three other hospitals, but those transfers were blocked by Nelson, EMC, Matthews, Clark-Martin, Boggs, Valcarenghi, and Wilms by presenting false statements to the court in support of their request for injunctive relief. Id. at 12-13. Plaintiff further alleges that defendants falsely claimed they were as capable of providing medical care to decedent as the larger medical centers which plaintiff preferred. Id. at 13. Decedent's husband, Richard Martin, also requested a transfer during a meeting with Stansell; however, Stansell, Calkins, O'Mahoney, and Verma denied the transfer. Id.

Plaintiff further alleges that Stansell, not knowing decedent's medical history (and with decedent unable to convey her wishes to Stansell), should have resigned as appointed attorney for decedent. Id. at 13-14. Plaintiff also alleges that Calkins and O'Mahoney did not fulfil their duties of facilitating communication between the family and EMC, and of protecting decedent, but instead advocated for EMC's position. Id. at 14. Plaintiff claims that, because they lacked medical knowledge, Calkins and O'Mahoney agreed to harmful procedures that did more bad than good. Id. Plaintiff further alleges that Calkins and O'Mahoney's continued representation put decedent "in a stressful state of confusion and fear." Id. at 15.

Plaintiff contends that decedent was ultimately transferred to Kindred Hospital in Sacramento County. Id. Plaintiff alleges that, when the transfer occurred, Clark-Martin said she had "no interest" in continuing the TRO, and dismissed all false accusations against [plaintiff] and her family." Id. However, Stansell requested to continue serving as decedent's attorney "to see how it goes at Kindred." Id. Judge Roberts granted this request, and also held that defendants Calkins and O'Mahoney would remain as guardians. Id. While plaintiff originally said that she was "happy to have . . . the guardian[s] stay involved and help," id. at 64, plaintiff now alleges that this was improper since Clark-Martin dropped her accusations; however, the court-approved stipulation provided that the limitations would only cease upon further court order. Id. at 15, 53.

Plaintiff alleges that defendant Calkins "fictitiously" signed her name as "Conservator" when admitting decedent into Kindred (however, court documents reveal that the public guardian was appointed as conservator), and that Calkins was unable to answer the majority of medical history questions. Id. at 15-16, 52. Plaintiff attempted to meet with Dr. Lew and Dr. Avdolovic to give them the proper information, but alleges that there was ultimately only a secret meeting in which plaintiff was not allowed to participate. Id. at 16. As a result, plaintiff alleges that decedent was subjected to more harmful treatment, ultimately leading to decedent's wrongful death. Id.

Plaintiff alleges that "by blindly accepting the visitation and informed consent restrictions first applied at EMC" and by following the directives of the EMC physicians, defendants Kindred, Lew, and Avdolovic continued the elder abuse of decedent and failed to provide her reasonable care, which led to her wrongful death. Id. at 16-17. Plaintiff also alleges that defendant Avdolovic refused to transfer decedent to another hospital that could provide care for her when a clonidine patch placed by defendant Lew was removed and caused decedent's blood pressure to drop significantly. Id. at 17. Plaintiff alleges that defendant Avdolovic recognized that they did not have the equipment to determine whether decedent was bleeding internally, but refused to transfer her. Id. Decedent passed away two days later. Id.


Plaintiff now brings suit against the seventeen named defendants, and appears to assert several causes of action. See generally First Am. Compl., Dckt. No. 74. Plaintiff's first amended complaint does not list specific causes of actions, nor does it state which defendants those claims are asserted against. Instead, the first amended complaint contains a series of titled headings with a muddled discussion of asserted facts below them, sometimes listing a cause or causes of actions and sometimes not. Hidden among the prolix allegations and discussion are certain purported claims. Specifically, plaintiff alleges: (1) circumvention of health care informed consent standards; (2) defamation; (3) strategic lawsuit against public participation (SLAPP) for purposes of circumventing informed consent; (4) strategic lawsuit against public participation (SLAPP) intended to obscure substandard care in order to avoid litigation for malpractice; and (5) elder abuse and emotional distress. Id. Also buried in plaintiff's third "claim" is an allegation that (6) plaintiff's due process rights were violated, and (7) that defendant Potter violated California Rule of Professional Conduct 3-500. Id. at 7-8. Additionally, buried in plaintiff's fourth "claim" is an allegation that (8) defendant Kasza violated California Penal Code section 471.5. Id. at 11. Finally, buried in plaintiff's fifth "claim" are allegations of (9) false imprisonment of decedent,*fn8 id. at 12, and (10) wrongful death of decedent, id. at 16-17.*fn9


A. Rule 12(b)(6) Standard

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Aschroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithem, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985). However, the courts liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, ...

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