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Robert Elliot v. S. Readdy

March 26, 2013

ROBERT ELLIOT, PLAINTIFF,
v.
S. READDY,*FN1 ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER*fn2

Plaintiff is a state prisoner, who proceeds with court-appointed counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court are four separate motions to dismiss filed, respectively, by defendants McHenry Medical Group (Dkt. No. 72), Doctors Medical Center of Modesto and Doctors Hospital of Manteca (Dkt. No. 75), defendants Beck and Liu (Dkt. No. 73), and defendants Reddy, Sahota, Gabriel, Monteiro, Fransham and Walker (Dkt. No. 74). All defendants seek dismissal of the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that plaintiff has failed to allege facts sufficient to state a cognizable federal claim. Plaintiff filed an opposition to each motion. (Dkt. Nos. 76-9.) All defendants filed replies. (Dkt. Nos. 80-3.)

These matters were heard before the undersigned on March 21, 2013. Attorney Edward Jacob Lubarsky appeared on behalf of plaintiff.*fn3 Attorney Stephanie Lee Roundy appeared on behalf of the McHenry Medical Group, and defendants Beck and Liu; attorney Randall R. McKinnon appeared on behalf of Doctors Medical Center of Modesto and Doctors Hospital of Manteca; remaining defendants Reddy, Sahota, Gabriel, Monteiro, Fransham and Walker were represented by Deputy Attorney General Oliver Robert Lewis.

For the reasons that follow, defendants' motions are granted in part and denied in part, and plaintiff is granted leave to file a Second Amended Complaint.

I. Dismissals Stipulated to at the Hearing

For the reasons stated at the hearing, plaintiff's counsel agreed to the dismissal of defendants McHenry Medical Group, Doctors Medical Center of Modesto, Doctors Hospital of Manteca, and Dr. Alexander Liu without leave to amend. Accordingly, each of those defendants is dismissed pursuant to this order without leave to amend.

II. Legal Standards for a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). To survive dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility.*fn4 Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). "[I]n a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and internal quotation marks omitted).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.

III. Plaintiff's Factual Allegations

Plaintiff is incarcerated under the authority of the California Department of Corrections and Rehabilitation ("CDCR"), at the California Institution for Men, in Chino. Plaintiff filed this action on November 5, 2010, while incarcerated at Folsom State Prison ("FSP"). This action now proceeds on plaintiff's First Amended Complaint ("FAC"), filed August 28, 2012. (Dkt. No. 58.)

As set forth in the FAC, plaintiff underwent a CT scan in April 2009 that showed a left kidney mass. Defendant Dr. Reddy, a CDCR physician, diagnosed kidney cancer (renal cell carcinoma), and recommended that plaintiff have his left kidney surgically removed (a left nephrectomy). Plaintiff responded that cancer did not run in his family, and that he did not wish to have the surgery, and asked if there were other means of diagnosis or less invasive treatments. Over the next several months, Dr. Reddy reportedly declined plaintiff's request for a second opinion; told plaintiff that the surgery was a "no brainer," and that the cancer was spreading "as we speak"; and informed plaintiff that he had only six months to live and would die in prison if he didn't have the surgery. (FAC ¶ 18.) "Finally, after months of influence and coaxing by Dr. Reddy, Plaintiff reluctantly agreed to the surgery as he was repeatedly informed he only had six (6) months to live." (Id.)

On October 6, 2009, Dr. Reddy completed a "Physician Request for Services" form, requesting that plaintiff undergo a left nephrectomy. (Cmplt. Exh. A (Dkt. No. 58-3 at 3).) On October 8, 2009, defendant Monteiro, a registered nurse, approved the application. (Id.) Neither Reddy nor Monteiro first inquired, recommended or sought approval for a biopsy of plaintiff's kidney. (FAC ¶ 19.)

On November 23, 2009, defendant Dr. Sahota, a CDCR physician,*fn5 ordered a full-body bone scan of plaintiff. Dr. Sahota found that a "[t]ypical metastatic pattern is not present," and that the "bone scan is not suggestive of metastatic disease." (Cmplt. Exh. B (Dkt. No. 58-3 at 5).) However, "[a]t no time did Dr. Sahota inquire, recommend, or seek approval for a biopsy of Plaintiff's kidney." (FAC ¶ 20.)

On December 9, 2009, defendant Dr. Gabriel, a CDCR physician (see n.5, supra), performed a renal flow study and renogram of plaintiff. Dr. Gabriel found reduced function in both kidneys (decreased clearance of 25 minutes on the left, and 26 minutes on the right, with normal clearance being 10 minutes), but no evidence of an obstruction. (Cmplt. Exh. C (Dkt. No. 58-3 at 7-8.) "At no time did Dr. Gabriel inquire, recommend, or seek approval for a biopsy of Plaintiff's kidney." (FAC ¶ 21.)

On December 21, 2009, plaintiff had a pre-operative appointment with defendant Dr. Beck, at defendant McHenry Medical Group. (FAC ¶ 22.) Dr. Beck did not know which of plaintiff's kidneys was affected, noting in pertinent part (id., Exh. D, Dkt. No. 58-3 at 10-1):

This patient has a CT scan which showed a 2.9 x 2.5 cm hypodense mass in the upper pole of the right kidney. . . . CT scan in April 2009 showed left renal mass subsequent to x rays at Mercy Hospital in Folsom showed a right renal mass. I do not have these films so I am not sure which side it is on at this point. . . . CT scan shows no evidence of metastasis and bone scan is negative. He has apparently had a chest x ray which is negative. . . .

Impression/ Plan: Kidney cancer. I am not sure which side it is on at this point; probably the right. We will get the films and assess the laterality, and schedule him for laparoscopic hand-assisted radical nephrectomy.

"At no time did Dr. Beck inquire, recommend, or seek approval for a biopsy of Plaintiff's kidney." (FAC ¶ 21.)

On January 4, 2010, plaintiff underwent blood work in preparation for surgery, as ordered by Dr. Reddy. "Again, Dr. Reddy did not inquire, recommend, or seek approval for a biopsy of Plaintiff's kidney before his recommended surgery was performed upon him." (FAC ¶ 23.)

On January 6, 2010, plaintiff's left kidney was removed at Doctors Medical Center of Modesto, by defendant Dr. Beck and his assistant, defendant Dr. Liu. "At no time did Dr. Beck or Dr. Liu inquire, recommend, or seek approval for a biopsy of Plaintiff's kidney before extracting it from Plaintiff's person." (FAC ¶ 24.)

Upon review of the excised kidney, pathologist Dr. Cui discovered that the kidney was cancer-free. (FAC ¶ 25). Dr. Cui provided the following diagnosis (id., Exh. G, Dkt. No. 58-3 at 20):

Left kidney, left radical nephrectomy:

- Benign kidney with multiocular cyst.

- No evidence of renal cell carcinoma.

- Scattered minimal chronic inflammation.

On January 20, 2010, Dr. Beck informed plaintiff that the kidney he had removed was cancer-free, and that the mass seen on the original CT scan was only a cyst. "When Plaintiff started to express frustration with the information he was receiving from Dr. Beck, Dr. Beck callously replied, 'You've been notified.'" (FAC ¶ 26.)

On January 28, 2010, plaintiff filed the first of several administrative grievances alleging deliberate indifference to his serious medical needs. Plaintiff also alleged FSP correctional defendants Fransham and Walker intentionally delayed the appeals process, to protect the medical defendants ...


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