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Genthner v. Naeni

United States District Court, E.D. California

March 10, 2017

DEBBY GENTHNER, Plaintiff,
v.
DR. FARIBORZ NAENI, et al., Defendants.

         THIRTY-DAY DEADLINE

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF No. 1)

         Plaintiff Debby Genthner is appearing pro se and in forma pauperis in this action. Currently before the Court is Plaintiff's complaint, filed March 1, 2017. (ECF No. 1.)

         I. SCREENING REQUIREMENT

         The district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners). In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare 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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In reviewing the pro se complaint, the court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

         II. COMPLAINT ALLEGATIONS

         On February 29, 2016, Plaintiff went to the Surgical Services Clinic for a left ankle injury. (Compl. at 7, [1] ECF No. 1.) Dr. Okoro told Plaintiff that she and Dr. Fariborz Naeni looked at the x-rays that were taken of Plaintiff's left ankle that day and that Dr. Naeni would come see Plaintiff. (Compl. at 5, 7.) Plaintiff claims that Dr. Naeni did not go to Plaintiff's room to examine her and Dr. Okoro did not examine her foot and barely touched her ankle. (Compl. at 7.) Dr. Okoro told Plaintiff that “everything was fine with [her] x-rays.” (Compl. at 8.) Dr. Okoro told Plaintiff that her “left foot had no other breaks or trauma and it was okay to continue to walk on [her] left foot.” (Compl. at 7.) Dr. Okoro said it was a sprain and to stay off of it for a while if it hurt, but that it was okay to walk on it, and even power walk on it. (Compl. at 8.)

         On May 26, 2016, Plaintiff went to the emergency room at Community Regional Medical Center (“CRMC”). (Compl. at 7.) Plaintiff alleges that her ankle was re-injured, looked bruised again, was really swollen, and she had a hard time walking on it. (Compl. at 9.) Plaintiff claims that she waited over ten hours to see a doctor and have x-rays taken. (Id.) Plaintiff claims that Dr. Yolanda Moore looked at the February 29, 2016 and May 29, 2016 x-rays and then talked to Plaintiff in the hallway. (Id.) Plaintiff alleges that Dr. Yolanda Moore told her that she could see a prior fracture, which healed, and some fragmented bones in her left ankle on the February 29, 2016 x-rays. (Compl. at 7, 9.) Plaintiff contends that the doctors who looked at her x-rays on May 29, 2016, did not note her avulsion fracture, that her ankle was “really swollen, ” and that she could barely walk. (Compl. at 9.) Plaintiff begged Dr. Moore for a referral to an orthopedic specialist because Dr. Luong, her doctor, would not give her one, but Dr. Moore said she could not give her one because it was an old injury. (Compl. at 9, 10.) Dr. Moore gave Plaintiff a flat foot support and told Plaintiff to go to her doctor for a referral. (Compl. at 9.)

         On September 20, 2016, Plaintiff was seen by Dr. Douglas M. Bluth, who told Plaintiff that she had an avulsion fracture in her left ankle. (Compl. at 7.) Plaintiff wore a boot for over a month and her ankle started to feel better. (Compl. at 8.) She wears a brace for her left ankle daily. (Id.) She still has pain and does not think it healed properly, but she has not had any follow-up care. (Compl. at 8-9.) She thinks she should have another x-ray and a consultation with an orthopedic doctor to see if it healed properly and if there is permanent damage. (Compl. at 9.)

         Plaintiff claims that she suffered emotional distress because Dr. Naeni and Dr. Okoro did not diagnose and treat her for the avulsion fracture in her left ankle on February 29, 2016, at the Surgical Services Clinic, and Dr. Moore, Dr. Chinnock, and other doctors did not do so on May 26, 2016, at CRMC. (Compl. at 7, 8, 11.) Plaintiff alleges that she walked around in pain for over eight months with no diagnosis or treatment for her ankle fracture. (Compl. at 8, 11.) She alleges that she “woke up with [her] left ankle bruised with swelling and a lot of pain.” (Compl. at 8.) She claims that Dr. Moore, Dr. Brian Chinnock, and others at CRMC did not diagnose new fractures, swelling, and bruising on May 26, 2016. (Compl. at 9, 10.) She claims that she should have seen an orthopedic doctor and been fitted with a boot at CRMC and had a follow-up appointment scheduled with an orthopedic doctor. (Compl. at 10.)

         Plaintiff brings this action against CRMC, Surgical Services Clinic, Dr. Naeni, Dr.

         Moore, and Dr. Chinnock alleging federal-question jurisdiction because of respondeat superior, vicarious liability, doctrine of corporate negligence, hospital corporate liability, and California Penal Code §§11160 and 11161. (Compl. at 2-4.)

         Plaintiff brings a claim under California Penal Code §§ 11160(a)(2) and (b) and 11161 for Dr. Naeni and Dr. Okoro's failure to report her left ankle avulsion fracture to authorities on February 29, 2016, and for Dr. Moore, Dr. Chinnock, and other involved doctors' failure to report her left ankle avulsion fracture to authorities on May 26, 2016. (Compl. at 8, 10, 14.) Plaintiff alleges that she has “continued to suffer from repeated injuries by this perpetrator or perpetrators because Dr. Fariborz Naeni and Dr. Okoro did not report these injuries to law enforcement authorities.” (Compl. at 8.) Plaintiff also alleges that she has “continued to suffer from repeated injuries by this perpetrator or perpetrators because Dr. Yolanda Moore and Dr. Brian Chinnock did not report these injuries to law enforcement.” (Compl. at 10-11.)

         Plaintiff seeks compensatory damages and punitive damages. (Compl. at 14.) She also asks the Court to hold Defendants accountable and criminally charge them. (Compl. at 6, 13.) She states that the doctors named in this complaint should have their licenses revoked. (Compl. at 13.) She alleges intentional ...


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