Larson v. Paramo

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

          Hon. Barry Ted Moskowitz, United States Chief District Judge.

         Jon Warren Larson (“Plaintiff”), a prisoner currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”), is proceeding pro se in this civil action, which he commenced with a Complaint filed on February 12, 2015, pursuant to 42 U.S.C. § 1983. See Compl. (ECF Doc. No. 1).

         I. Procedural History

         On April 22, 2015, the Court granted Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and found that Plaintiff’s Complaint contained plausible claims for relief which were sufficient to survive the “low threshold” for proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).^[1] See Apr. 22, 2015 Order (ECF Doc. No. 3.); see also Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). U.S. Marshal was directed to effect service of Plaintiff’s Complaint on his behalf pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3).

         Plaintiff was later granted leave to file a First Amended Complaint (“FAC”). See FAC (ECF Doc. No. 37.) On October 26, 2015, Defendants filed a Motion to Dismiss Plaintiff’s FAC pursuant to Fed.R.Civ.P. 12(b)(6). (ECF Doc. No. 45.) After being granted an extension of time, Plaintiff filed his Opposition to Defendants’ Motion and Defendants have filed a Reply. (ECF Doc. Nos. 65, 66.)

         II. Plaintiff’s Allegations

         On September 11, 2014, Plaintiff was housed at RJD. See FAC at 15. Plaintiff went to the “Prison Infirmary Emergency Room” at RJD to have a wart removed from his left leg. Id. Plaintiff was examined by Dr. Newton who noted in Plaintiff’s medical records that Plaintiff had “complained for several months of pain and bleeding from what appeared to be some type of wart for over seven years.” Id. Plaintiff alleges that Dr. Newton told him that he “could be” suffering from an “in grown hair.” Id. Dr. Newton then performed a procedure to “remove the spot” by using a “Number 5 punch biopsy.” Id. at 16. Plaintiff was given a “numbing shot” and medication to “stop the flow of bleeding.” Id. The area removed was sent to a laboratory to “check for cancer.” Id. Plaintiff alleges Dr. Newton “cauterized” the wound but failed to “give any cleaning instructions” or provide any “antibiotics for the open wound.” Id.

         Three days later, on September 14, 2014, Plaintiff was in the shower when he “noticed blood on the wall in heavy streams, ” and he could see his left leg “squirt blood approximately 3 to 4 feet.” Id. at 10. Plaintiff “wrapped” his leg with a towel and went to Correctional Officer Gonzalez^[2] who wrote him a pass to go to “Facility ‘C’ Medical.” Id. at 10-11. Plaintiff claims he “stood in a 3 foot round puddle of blood for 3 to 5 minutes” before Nurse Gil came to examine him. Id. at 11. He claims Nurse Gil “only gave me gauze and band aids” which Plaintiff refused. Id. Plaintiff maintained that he needed to be examined at the Prison Infirmary and after five minutes of disagreement with Nurse Gil, Plaintiff was ultimately sent to the Prison Infirmary. Id. At the infirmary, Plaintiff was examined by LVN Wenzel who accused Plaintiff of “picking at wound on left leg.” Id. at 13.

         On September 17, 2014, Plaintiff was examined by Nurse Paule after informing her that his leg had been “squirting blood 3 to 4 feet.” Id. at 12. Defendant Paule “cleaned the wound” and sent Plaintiff back to his housing unit. Id. However, while later taking a shower, the wound “started to bleed and squirt blood 3 to 4 feet.” Id. Plaintiff again wrapped his leg in a towel and went to Correctional Officer Cortez^[3] who sent Plaintiff to Facility “C” Medical. Id. Plaintiff was examined by Defendant Paule who stated after seeing the “blood squirting” from Plaintiff’s leg, “I thought you were lying about it.” Id. She further stated that the growth on this leg should have been “frozen off.” Id. Defendant Paule cleaned Plaintiff’s wound, applied a “clear water proof bandage” on his leg and noted in his medical records that his “leg was healed.” Id.

         Two days later, on September 19, 2014, Plaintiff was in his GED class when he noticed that he was “standing in a pool of purple blood approximately 3 to 4 feet in a circle” and his “prison boot was full of blood.” Id. at 19. Plaintiff told the classroom instructor who called the “work change officers” who in turn called the “Emergency Transport Vehicle.” Id. Plaintiff was then transferred to the Prison Infirmary. Id.

         Plaintiff was examined by Dr. Suleman^[4] who “tried to stop the bleeding by using a pressure bandage for thirty minutes.” Id. at 20. Ultimately, Defendant Suleman decided to transfer Plaintiff from RJD to the Alvarado Hospital Emergency Room due to “arterial bleed due to punch biopsy to Plaintiff’s left leg.” Id. at 16.

         III. Defendants’ Motion

         As stated above, Defendants have filed a Motion to Dismiss Plaintiff’s FAC pursuant to Fed.R.Civ.P. 12(b)(6) (ECF Doc. No. 45). Specifically, Defendants argue that Plaintiff fails to state an Eighth Amendment claim upon which relief can be granted because his allegations “boil down to claims of negligence and/or medical malpractice.” See Defs.’ Mem. of P&As’ in Supp. of Mot. (ECF Doc. No. 45-1) at 6. In addition, Defendants argue that because there “are no valid federal claims, the Court should decline to assert supplemental jurisdiction” over Plaintiff’s state law claims. Id.

         A. Standard of Review

         A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff’s complaint must provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. at 679 (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 (on motion to dismiss court is “not bound to accept as true a legal conclusion couched as a factual allegation.”). “The pleading standard Rule 8 announces does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citations omitted).

         In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-conclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 676-684; Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (noting that the court need not accept legal conclusions, unwarranted deductions of fact, or unreasonable inferences as true). And while “[t]he plausibility standard is not akin to a probability requirement, ” it does “ask[] for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted “to draw on its judicial experience and common sense.” Id. at 679.

         Nevertheless, claims asserted by pro se petitioners, “however inartfully pleaded, ” are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519-20 (1972). Thus, courts “continue to construe pro se filings liberally when evaluating them under Iqbal.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (noting that courts “have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.”)).

         Finally, when resolving a motion to dismiss for failure to state a claim, the court may not generally consider materials outside the pleadings, but it may consider exhibits which are attached. See Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). “The focus of any Rule 12(b)(6) dismissal ... is the complaint.” Id.

         B. Official Capacity

         Defendants seek dismissal of Plaintiff’s Complaint to the extent he seeks money damages against them based on actions taken in their “official” capacity. While the Eleventh Amendment bars a prisoner’s section 1983 claims against state actors sued in their official capacities, Will v. Michigan, 491 U.S. 58, 66 (1989), it does not bar damage actions against state officials sued in their personal or individual capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991); Pena v. Gardner, 976 F.2d 469, 472-73 (9th Cir. 1992). When a state actor is alleged to have violated both federal and state law and is sued for damages under section 1983 in his individual or personal capacity, there is no Eleventh Amendment bar, even if state law provides for indemnification. Ashker v. California Dep’t of Corrections, 112 F.3d 392, 395 (9th Cir. 1997).

         The Supreme Court has made it clear that a plaintiff can establish personal liability in a section 1983 action simply by showing that each official acted under color of state law in deprivation of a federal right. Hafer, 502 U.S. at 25. Consequently, the Court GRANTS Defendants’ Motion to Dismiss on Eleventh Amendment ...