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Genthner v. Naeni

United States District Court, E.D. California

April 18, 2017

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

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF No. 5)

         On March 1, 2017, Plaintiff Debby Genthner (“Plaintiff”), proceeding pro se and in forma pauperis, filed this action. (ECF No. 1.) On March 10, 2017, the complaint was screened and dismissed for failure to state a claim. (ECF No. 4.) Plaintiff was granted leave to file an amended complaint within thirty days. Currently before the Court is Plaintiff's first amended complaint, filed April 10, 2017. (ECF No. 5.)

         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. (First Amended Complaint (“FAC”) at 10, [1] ECF No. 5.) 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. (FAC at 10.) Plaintiff claims that Dr. Naeni did not examine her and Dr. Okoro did not examine her foot and barely touched her ankle. (FAC at 10, 11.) Dr. Okoro told Plaintiff that “everything was fine with [her] x-rays.” (FAC at 11.) 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.” (FAC at 10.) 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. (FAC at 11.) Plaintiff alleges that she walked around in pain for over seven months with no diagnosis or treatment for her ankle fracture. (FAC at 11.)

         On May 26, 2016, Plaintiff went to the emergency room at Community Regional Medical Center (“CRMC”). (FAC at 12.) Plaintiff alleges that her ankle was re-injured, looked bruised again, was really swollen, and she had a hard time walking on it. (Id.) 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 had some fragmented bones in her ankle and the prior fracture had healed. (FAC at 10.) 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. (FAC at 13.) She claims that Dr. Moore, Dr. Brian Chinnock, and others at CRMC did not diagnose new fractures, swelling, and bruising on May 26, 2016. (FAC at 12.) 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. (Id.) Dr. Moore gave Plaintiff a flat foot support and told Plaintiff to go to her doctor for a referral. (Id.) 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. (FAC at 13.)

         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. (FAC at 10.) Plaintiff wore a boot for over a month and her ankle started to feel better. (FAC at 12.) 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. (Id.) 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. (Id.)

         Plaintiff brings this action against CRMC, Surgical Services Clinic, Dr. Naeni, Dr. Moore, and Dr. Chinnock alleging federal-question jurisdiction because of respondeat superior, doctrine of corporate negligence, hospital corporate liability, and California Penal Code §§11160 and 11161. (FAC at 2-4.)

         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. (FAC at 11-12.) She alleges intentional infliction of emotional distress and negligent infliction of emotional distress. (FAC at 18.)

         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. (FAC at 11, 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.” (FAC at 11.) 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 authorities.” (FAC at 14.)

         Plaintiff seeks compensatory damages and punitive damages. (FAC at 18.) She also asks the Court to criminally charge Defendants. (Id.) She states that the doctors named in this complaint should have their licenses revoked. (Id.)

         III. DISCUSSION

         Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to Section 1331 of Title 28 of the United States Code, federal district courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises under' federal law either where federal law creates the cause of action or ‘where the vindication of a right under state law necessarily turns on some construction of federal law.' ” Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983) (citations omitted)). “[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule, ' which provides that federal ...


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