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Genthner v. Naeni

United States District Court, E.D. California

June 7, 2017

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

          ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF NO. 7)

         On March 1, 2017, Plaintiff Debby Genthner, proceeding pro se and in forma pauperis, filed this action. (ECF No. 1.) On March 10, 2017, the complaint was screened and dismissed with leave to amend. (ECF No. 4.) On April 10, 2017, Plaintiff filed a first amended complaint. (ECF No. 5.) On April 19, 2017, the first amended complaint was screened and dismissed with leave to amend. (ECF No. 6.) On May 19, 2017, Plaintiff filed a second amended complaint, which is currently before the Court. (ECF No. 7.)

         I.

         SCREENING REQUIREMENT

         Notwithstanding any filing fee, the district court must perform a preliminary screening and must dismiss a case if at any time the Court determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 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); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). 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.

         SECOND AMENDED COMPLAINT'S ALLEGATIONS

         As with her first amended complaint, Plaintiff names Dr. Fariborz Naeni, Dr. Yolanda Moore, Dr. Brian Chinnock, Surgical Services Clinic, and Community Regional Medical Center (“CRMC”) as defendants. (Second Amended Complaint (“SAC”) at 2-4, [1] ECF No. 7.) She also now names Dr. Oroko as a defendant. (SAC at 2.) The second amended complaint is largely identical to the first amended complaint, except Plaintiff has added a ninth and tenth claims.

         On February 29, 2016, Plaintiff went to the Surgical Services Clinic for a left ankle injury. (SAC at 8.) Dr. Okoro told Plaintiff that she and Dr. Naeni looked at the x-rays that were taken of Plaintiff's left ankle that day. (SAC at 8.) Plaintiff claims that Dr. Naeni did not examine her and Dr. Okoro did not examine her foot and barely touched her ankle. (SAC at 9, 11.) Dr. Okoro told Plaintiff that “everything was fine with [her] x-rays.” (SAC at 9.) 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.” (SAC at 8.) 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. (SAC at 8, 9.) Plaintiff alleges that she walked around in pain for over seven months with no diagnosis or treatment for her ankle fracture. (SAC at 9, 10.)

         On May 26, 2016, Plaintiff went to the emergency room at CRMC. (SAC at 10.) 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. (SAC at 10-11.) Plaintiff claims that Dr. Moore looked at the February 29, 2016 and May 29, 2016 x-rays and then talked to Plaintiff in the hallway. (SAC at 11.) Plaintiff alleges that Dr. Yolanda Moore told her that she had some fragmented bones in her ankle and the prior fracture had healed. (Id.) 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. (Id.) She claims that Dr. Moore, Dr. Chinnock, and others at CRMC did not diagnose new fractures, swelling, and bruising on May 26, 2016. (SAC at 10.) 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. (SAC at 11.) 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. (SAC at 11.)

         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. (SAC at 8.) Plaintiff wore a boot for over a month and her ankle started to feel better. (SAC at 10.) 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 alleges federal-question jurisdiction based on the United States Constitution, the Fourth Amendment, privacy, conspiracy, 42 U.S.C. § 1985, 28 U.S.C. § 1343, the doctrine of corporate negligence, vicarious liability, and California Penal Code §§ 11160 and 11161. (SAC at 3, 5.)

         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. (SAC at 10, 13.) She alleges intentional ...


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