Robinson v. Kitt

          FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION TO DISMISS (DOC. 30) 21-DAY DEADLINE

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff claims the defendants acted with deliberate indifference to his treatment of his diplopia (double-vision)^[1] which presented after surgery to remove nasal polyps. (See Doc. 9.) Defendants Dr. Klang, Dr. Youssef, Dr. Songer, Dr. Patel, and Lewis move the Court to dismiss the action, asserting that Plaintiff's allegations fail to state a claim upon which relief can be granted. (Doc. 30, MTD.)

         Because the Court finds that there Plaintiff's second amended complaint and the responses to his inmate grievances demonstrate the defendants did not violate his Eighth Amendment rights and because the state claims are untimely, the Court recommends the motion be GRANTED and this entire action be dismissed.^[2]

         I. LEGAL STANDARD

         The Court may dismiss an action under Rule 12(b)(6) if there is a lack of a cognizable legal theory stated or there are insufficient facts alleged to support a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011), cert. denied, 132 S.Ct. 1762 (2012). To survive a motion to dismiss, a complaint must contain sufficient factual allegations, 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 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept well-pled factual allegations as true and draw all reasonable inferences in favor of the non-moving party. 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); Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). The Court liberally construes pleadings of prisoners proceeding pro se and any doubt is resolved in the inmate's favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         Further, "[i]f there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216-17. "Plaintiff's complaint may be dismissed only when defendant's plausible alternative explanation is so convincing that plaintiff's explanation is implausible. The standard at this stage of the litigation is not that plaintiff's explanation must be true or even probable. The factual allegations of the complaint need only 'plausibly suggest an entitlement to relief.'" Id. (emphasis in original). "Rule 8(a) 'does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' to support the allegations." Id., quoting Twombly, 550 U.S. at 556 (emphasis added in Starr).

         III. DISCUSSION

         A. Defendants' Motion

         Defendants argue that Plaintiff's allegations show that none of the doctors named denied or delayed his medical treatment and that they and Lewis deferred to the treatment plans of the medical specialists. (Doc. 30, 3:22-9:4.) Further, Defendants assert that this suit was not timely filed after the Victims Compensation and Government Claims Board ("VCGCB") rejected his claim. (Id., at 9:5-10:2.)

         B. Deliberate Indifference to Serious Medical Needs

         To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must first "show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants' response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quotation marks omitted)).

         Where the condition is one that a reasonable doctor would find important and worthy of comment or treatment, it affects the patient's daily activities or it causes chronic or substantial pain, a serious medical need is likely to exist. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (citing McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)) (quotation marks omitted); Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). Plaintiff's double vision problem that occurred after his nasal polyp removal surgery appears to be a serious medical need.

         Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires ‘more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319). "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). "Under this standard, the prison official must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, ' but that person ‘must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "‘If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

         In medical cases, this requires showing: (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference "may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. (internal quotation marks omitted).

         Further, neither a "difference of opinion between a physician and the prisoner - or between medical professionals - concerning what medical care is appropriate, " nor even medical malpractice suffices for deliberate indifference claims. Estelle v. Gamble, 429 U.S. 97, 106 (1977); Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to [his] health." Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).

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