Mentzer v. Vaikutyte

          MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE.

         I.

         INTRODUCTION

         On March 11, 2016, William M. Mentzer (“Plaintiff”), a California state prisoner at California State Prison, Los Angeles County in Lancaster, California proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). On June 1, 2016, the Court dismissed the Complaint with leave to amend. (Dkt. No. 6). On June 20, 2016, Plaintiff filed a First Amended Complaint. (“FAC, ” Dkt. No. 7).

         Congress mandates that district courts screen civil complaints filed by prisoners seeking redress from a governmental entity or employee. 28 U.S.C. § 1915A(b). This Court may dismiss such a complaint, or any portions thereof, before service of process if the Court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

         For the following reasons, the Court finds that the First Amended Complaint must be dismissed. However, leave to amend is granted.^[1]

         II.

         ALLEGATIONS OF THE COMPLAINT

         The First Amended Complaint names one Defendant: Dr. Tawfik Hadaya, M.D., a urologist under contract to provide medical services to the California Department of Corrections and Rehabilitation. (FAC at 3). Dr. Hadaya is sued in his individual capacity. (Id.).

         In or about March 2015, Plaintiff, who has suffered from benign prostatic hyperplasia (“BPH”)^[2] for many years, began to suffer from an “outlet partial obstruction” due to BPH. (Id. at 5). On March 9, 2015, Plaintiff’s primary care physician, Dr. Anna Chen, referred Plaintiff to a specialist for a bladder cystoscopy, but she did not order the referral specialist to perform a biopsy. (See Id. at 5). Plaintiff claims that, after he underwent multiple “excruciating” biopsies in 2007, he vowed never to undergo a biopsy or other “invasive interventions” again, even if doing so meant risking prostate cancer. (Id. at 5-6).

         Plaintiff maintains that Dr. Hadaya performed a biopsy of Plaintiff’s prostate urethra in contravention of the referral order and Plaintiff’s statements that he would decline consent to a biopsy. (Id. at 6-7). Plaintiff claims that Dr. Hadaya knew that his conduct risked “substantial harm” to Plaintiff, but he performed the biopsy anyway. (Id. at 6). Plaintiff claims that he is not “repining for any deprivation or denial of access to health care, but is definitely claiming the reprehensible attitude and hubris displayed by Dr. Hadaya in not honoring his patient’s wishes.” (Id.). Plaintiff also argues that Dr. Hadaya’s conduct violates numerous professional rules applicable to surgeons. (Id.). Plaintiff requests that the Court order a cystoscopy so that Plaintiff can assess the extent of injuries caused by Dr. Hadaya. (Id. at 7). The First Amended Complaint does not explicitly specify the relief sought in this action, although it makes passing reference to “damages” for “additional, unnecessary pain and suffering and increased harm.” (Id.).

         III.

         DISCUSSION

         Under 28 U.S.C. § 1915A(b), the Court must dismiss the complaint due to defects in pleading. Pro se litigants in civil rights cases, however, must be given leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be cured by amendment. Lopez, 203 F.3d at ...