United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND FOR FAILURE TO STATE A CLAIM (ECF No. 5)
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.)
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)).
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.
February 29, 2016, Plaintiff went to the Surgical Services
Clinic for a left ankle injury. (First Amended Complaint
(“FAC”) at 10,  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.)
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.)
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.)
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.)
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
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.)
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.)
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