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McCullock v. Tharratt

United States District Court, S.D. California

November 8, 2017

ROBERT MCCULLOCK, Plaintiff,
v.
R. STEVEN THARRATT, et al., Defendants.

          ORDER REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE REGARDING MOTION TO DISMISS CIVIL RIGHTS COMPLAINT (ECF NO. 37)

          LOUISA S PORTER, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Robert McCullock[1] (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on February 18, 2016, against Defendants R. Steven Tharratt, Daniel Paramo, Maryann Glynn, Jin Kul Yu, Steven Roberts, and R. Walker. (ECF No. 1 (“Compl.”).) On July 29, 2016, Defendants Tharratt, Paramo, Glynn, Roberts, and Walker filed a Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and on the grounds of qualified immunity. (ECF No. 15.) On January 20, 2017, this Court issued a Report and Recommendation, recommending that the Honorable Larry A. Burns grant Defendants' Motion to Dismiss with leave to amend, and issue an order to show cause why Defendant Jin Kul Yu should not be dismissed without prejudice for failure to prosecute, as he was not served with the Complaint. (ECF No. 23.) On February 16, 2017, Judge Burns adopted the Report and Recommendation and dismissed the Complaint with leave to amend. (ECF No. 30.)

         On April 5, 2017, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants Steven Tharratt, Maryann Glynn, Steven Roberts, R. Walker, Daniel Paramo, and Jin Kul Yu (collectively, “Defendants”). (ECF No. 36.) On April 12, 2017, Defendants filed a Motion to Dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and on the grounds that Plaintiff is not entitled to the injunctive and declaratory relief requested in the FAC. (ECF No. 37.)

         In accordance with Civil Local Rule 72.3, Defendants' Motion to Dismiss is referred to the magistrate judge for a Report and Recommendation. After a thorough review of the pleadings, the parties' papers, and all supporting documents, the Court hereby RECOMMENDS that Defendants' Motion to Dismiss be GRANTED.

         I. FACTUAL BACKGROUND

         Plaintiff is, and was at all relevant times, a prisoner confined at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California. (FAC at 11.) Plaintiff alleges he had a specialist-recommended biopsy in February 2015. (Id. at 15, Exh. A(a).) On March 4, 2015, Defendant Dr. Yu, a primary care provider at RJD, documented in a progress note that the pathology report on the biopsy was not available and stated that s/he would obtain the report “and follow-up with [Plaintiff] to address this and rule out cancer.” (Id. at 12-13, 15, Exh. A(a).) On March 6, 2015, Defendant Dr. Yu obtained and initialed review of the pathology report. (Id.) The report allegedly noted a finding of “squamous cell carcinoma at deep margins.” (Id.) However, Plaintiff alleges Defendant Dr. Yu did not provide him with notice of the results or take action at that time or at subsequent appointments. (Id. at 12, 15, 31, Exh. A(a).)

         On April 29, 2015, a specialist seeing Plaintiff via tele-medicine for valley fever reviewed the pathology report's finding, informed Plaintiff he had cancer, and discussed it in his report. (Id. at 15, 31, Exh. A(a), 35.) The specialist recommended that Plaintiff be referred to another specialist. (Id. at 15, 31, 35, Exh. A(a).) On May 1, 2015, upon review of the report, Defendant Dr. Yu generated a “Request for Service” for plastic surgery and prioritized the referral as “routine.” (Id.) In the Request for Service, Defendant Dr. Yu allegedly does not state that the pathology report finding cancer had been issued approximately three months earlier. (Id.)

         On May 14, 2015, three specimens were excised from Plaintiff. (Id. at 34, Exh. B.) The specimens, taken from both clavicles and the left shoulder, were negative for cancer. (Id.) The final diagnosis was mild actinic keratosis in all three specimens. (Id. at 16, 34, Exh. B.) According to a Memorandum from California Correctional Health Care Services (“CCHCS”), dated June 2, 2015, Plaintiff did not have to follow up with plastic surgery at that time; however, he will require surveillance due to his higher risk for future malignancy. (Id. at 34, Exh. B.) This will be determined by his primary care provider and dermatology, if needed. (Id.)

         Plaintiff attaches to his FAC a Training Participation Sign-In Sheet dated on or about May 12, 2015, which reflects that Defendants Walker and Roberts met with Defendant Dr. Yu regarding Plaintiff. (Id. at 33.)

         Plaintiff also attaches to his FAC a June 2014 CCHCS Utilization Management (“UM”) Program Policy, which was enacted to “ensure the appropriate use of limited health care resources.” (Id. at 21-30.) The Chief Executive Officer (“CEO”) at each institution, who Plaintiff alleges is Defendant Glynn at RJD, is responsible for the implementation of this policy at the local level, and the Statewide Chief Medical Executive, who Plaintiff alleges is Defendant Tharratt, is responsible for the implementation of this policy at Headquarters. (Id. at 11-12, 22.) In addition, Plaintiff attaches to his FAC the UM Medical Services Review Procedure and the UM Inter-Rater Reliability Procedure, both dated June 2014. (Id. at 23-30.)

         The UM Medical Services Review Procedure covers the review process for “high cost, high risk, exceptional, and complex cases.” (Id. at 23.) Upon receipt of a CDCR Form 7243, the “institution UM Nurse or designee” shall review all health care provider service requests at the first level, and forward them to second level review for approval or denial. (Id. at 23-24.) At the second level, the Chief Medical Executive (Defendant Roberts) or a designee shall review and approve or deny the requested services. (Id. at 13, 24.) Appealed cases shall be heard by the Institutional UM Committee (“IUMC”) at the third level of review. (Id.) If the request is deferred, referred to the next level of review, or denied, the reason shall be documented by the Chief Medical Executive (Defendant Roberts), Chief Physician and Surgeon (Defendant Walker), or a designee, and forwarded to the UM Nurse for forwarding to the primary care provider. (Id. at 13-14, 24.) The primary care provider shall “document the decision and provide the patient-inmate with alternate strategies during the next visit, within 30 days of the deferral or denial of the specialty service.” (Id.) The fourth and final level of review is performed by the Headquarters Utilization Management Committee (“HUMC”), which consists of the Deputy Medical Executive or designee, and Executive or Managerial representation from Medical, Nursing and Mental health, if appropriate. (Id. at 27.) The process also provides that the institution Chief Medical Executive (Defendant Roberts), Chief Physician and Surgeon (Defendant Walker), or designee shall review all emergency consultations or procedures. (Id. at 13-14, 23.)

         The UM Medical Services Review Procedure further provides that the IUMC, consisting of the Institution Chief Medical Executive (Defendant Roberts), Institution CEO (Defendant Glynn), Institution Chief Physician and Surgeon (Defendant Walker), and Institution Warden (Defendant Paramo), shall, among other things, ensure institutional compliance with all UM program policies and procedures, and ensure that an institutions' medical staff receive training on UM policies and procedures. (Id. at 12-14, 25.)

         In this context, Plaintiff alleges that Defendant Tharratt, as statewide Chief Medical Executive for CCHCS, is responsible for implementing the CCHCS UM policy, and this policy set in motion the alleged constitutional violations. (Id. at 2, 11.) Plaintiff further alleges that Defendant Tharratt was “informed of deficiencies at RJDCF via Plata (case 3:01-cv-01351-THE) but has acquiesced.” (Id. at 11.) Plaintiff also alleges that Defendant Tharratt was deliberately indifferent to deficient performance, and “created policy or custom under which unconstitutional practices occurred, ” including “a violation of [Plaintiff's] protected liberty interest in bodily integrity.” (Id.)

         Plaintiff alleges that Defendant Paramo, as warden of RJD, is “legally responsible for the operation” of the facility and the welfare of the inmates. (Id. at 12.) Plaintiff alleges Warden Paramo was informed, and failed, and is still failing to prevent violations of constitutional rights, and is a committee member of the UM Medical Services Review. (Id.)

         Plaintiff further alleges that Defendant Glynn, as the CEO of CCHCS at RJD, is “responsible for implementation of policy.” (Id.) Plaintiff alleges that Defendant Flynn is a reviewer of requests for services as a member of the IUMC, and is responsible for medical policy at RJD. (Id.)

         Next, Plaintiff alleges that Defendant Roberts, as the Chief Medical Executive at RJD, is “legally responsible for all operations” of CCHCS and for the supervision and training of medical staff. (Id. at 13.) Plaintiff further alleges that Defendant Roberts is the chairperson of the IUMC, a reviewer of consultations or procedures, and a reviewer of completed requests for services. (Id.) In this capacity, Plaintiff alleges Defendant Roberts had reason to know of the alleged constitutional violation and did nothing to stop the infliction. (Id.) Plaintiff also alleges that Defendant Roberts was informed of the violations via CDCR complaints with Log Nos. RJD-D15-1861, RJD1503343, RJD15053445, the CCHCS memorandum of June 2, 2015, and the Health Care Evaluation in Plata. (Id.)

         Lastly, Plaintiff alleges Defendant Walker, as Chief Physician and Surgeon at RJD, is “legally responsible for supervision and training of his subordinates, ” as shown by the training sign-in sheet Plaintiff attaches to the FAC. (Id. at 14, 33, Exh. H.) Plaintiff alleges that a thirty minute training of Defendant Dr. Yu “after the fact” by Defendants Walker and Roberts was “deficient and useless” to ensure the provision of adequate medical care. (Id. at 14.) Plaintiff further alleges that Defendant Walker is a reviewer of requests for services and “saw no wrong in changing RFS [request for service] from priority to routine or that there was no alternative treatment strategies as set out in CCHCS policy and procedures.” (Id.) Plaintiff alleges that Defendant Walker's acquiescence caused Plaintiff's unnecessary surgery and violated his constitutional rights. (Id.)

         On May 5, 2015, Plaintiff filed a Citizen's Complaint. (Id. at 16, 35, Exh. D.) In the complaint, he alleges that “[w]hile at an appointment with the Valley Fever Specialist, I was informed I had cancer. This information should be given by ones ‘PCP, ' primary care physician, not found by chance.” (Id. at 35.) Plaintiff's complaint was rejected at the First Level on May 30, 2015, and subsequently assigned to the Health Care Appeals Office for response on or around June 4, 2015, and assigned Log No. RJD HC 15053445. (Id. at 16-17.) The appeal was denied on October 8, 2015. (Id.)

         On May 29, 2015, Plaintiff filed a separate Patient/Inmate Health Care Appeal (Log No. 15053343), alleging that he was “forced to use staff that is plaintiff's abuser.” (Id. at 17.) The appeal was rejected by Defendants R. Walker and M. Glynn. (Id.)

         On July 23, 2015, Plaintiff filed another Patient/Inmate Health Care Appeal (Log No. 15053656) seeking monetary compensation for unnecessary surgery for misdiagnosed squamous cell carcinoma. (Id. at 17, 36, Exh. F.)

         Plaintiff also filed a Government Claims Form. (Id. at 17.) On August 20, 2015, the Victim Compensation and Government Claims Board rejected Plaintiff's claim. (Id. at 17, 38, Exh. G.)

         In his FAC, Plaintiff brings a claim against Defendants in their individual and official capacities for deliberate indifference to medical needs and cruel and unusual punishment, in violation of the Eighth Amendment. (Id. at 2-6, 17.) He seeks an injunction preventing Defendants from keeping Plaintiff at a deficient facility that has been “deemed the worst medical in the state, ” and a transfer to a facility that gives competent medical care. (Id. at 9, 30.) He also seeks ...


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