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Phillips v. Borders

United States District Court, C.D. California, Eastern Division

November 20, 2017

VINCENT S. PHILLIPS, Plaintiff,
v.
DEAN BORDERS, et al., Defendants.

          MEMORANDUM AND ORDER DIMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND

          JOHN D. EARLY UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         On July 18, 2016, Plaintiff Vincent S. Phillips (“Plaintiff”), who was at that time a prisoner at the California Institute of Men (“the Prison”) in Chino, California, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”). Dkt. 1 (“Complaint”). By order dated September 7, 2016, the Court, performing its screening function under 28 U.S.C. 1915(e)(2) and 1915A, dismissed the Complaint with leave to amend. On February 6, 2007, Plaintiff filed a First Amended Complaint (“FAC”). By order dated May 5, 2017, the Court, again performing its screening function, entered an order dismissing the FAC with leave to amend.

         Following extensions, on October 18, 2017, Plaintiff filed the instant Second Amended Complaint[1] (“SAC” Dkt. 33) alleging five purported causes of action under Section 1983 and the Eighth and Fourteenth Amendments against: (1) Dr. Duong, Plaintiff's alleged primary care physician (“PCP”) at the Prison; (2) Dean Borders (“Warden Borders”), Warden at the Prison; (3) Dr. Garikaoarki, allegedly also a PCP for Plaintiff; (4) Dr. Oh, a physician in the Outpatient Housing Unit (“OHU”) at the Prison; (5) Dr. Lee, a physician in OHU; (6) Dr. Cho, a physician in OHU; (7) Dr. Chin, a physician in OHU; (8) Dr. Farooq, allegedly the Chief Medical Officer for the Prison and a supervisor of Dr. Duong; (9) Patricia Navarro (“RN Navarro”), a registered nurse assisting Dr. Duong; and (10) Clark Kelso (“Kelso”), Chief of Health Care Appeals. SAC at 3-5 (page references to the SAC are taken from the Court's CM/ECF automatic pagination) and ¶¶ 12-19 (paragraph references are taken from the paragraph numbers provided by Plaintiff starting at page 8 of the SAC). Plaintiff is no longer at CIM. Id. at 2.

         In accordance with 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court must screen the FAC to determine whether the action is frivolous or malicious, fails to state a claim on which relief might be granted, or seeks money damages against a defendant who is immune from such relief.

         II. SUMMARY OF ALLEGATIONS IN THE SAC

         Plaintiff alleges that on or about September 24, 2014, Plaintiff was transferred to the Prison with serious existing medical conditions for which he had been receiving treatment, including: serious aorta and heart problems, including a prior Type A aorta dissection surgery and a new Type B aorta heart dissection; migraine headaches; severe abdominal pain; hearing problems; glaucoma; and recent eye surgery. SAC ¶¶ 2-4. Plaintiff alleges that he had been prescribed a number of medical devices and appliances, such as a hearing aid, “tent to transition glasses, ” back and knee braces, and an orthotic boot. Id. ¶ 2. Plaintiff alleges that he advised Dr. Duong shortly after his arrival that “it was necessary for her to issue him chrono's for all his medical appliances, eye glasses, and orthotic [boots], for all of his above stated medical conditions” as well as requesting a follow-up visit from an ophthalmologist, but Dr. Duong refused his requests. Id. ¶ 3. Plaintiff alleges that the denial of the various medical appliances caused him pain, foot problems, headaches, and deterioration of hearing and vision. Id. Plaintiff further alleges that Dr. Duong, knowing that Plaintiff suffered from Hepatitis C, stage 3, refused to treat him, which Plaintiff alleges resulted in various harm, including cirrhosis of the liver, bruising, and other symptoms. Id. ¶¶ 5-6.

         Plaintiff alleges that a cardiologist had recommended physical therapy and a change in medication but Dr. Duong refused the recommendations, instead doubling Plaintiff's existing medication over Plaintiff's protests, leading Plaintiff to suffer from an abnormal heart rate and to experience a fall and a blackout. SAC ¶ 7. Plaintiff also alleges that he made repeated requests for treatment of bruises and bleeding sores which flared up upon his arrival at the Prison, including requests to Dr. Farooq, whom Plaintiff alleges “is in charge of overseeing Medical 602 complaints”; yet Plaintiff alleges that Dr. Duong did not properly prescribe medication for the problem, but instead referred Plaintiff to a dermatologist. Id. ¶ 8.

         Plaintiff alleges that “defendant” “changed [Plaintiff's permanent] medical chrono's” which Plaintiff alleges was undertaken to allow “defendant” to refuse Plaintiff's medical requests for his previously diagnosed conditions and prescriptions.[2] SAC ¶ 9. Plaintiff alleges that “defendant” changed Plaintiff's medical records “many times” and this “removal/falsification of his medical records” prejudiced him because the California Department of Corrections and Rehabilitation (“CDCR”) would only consider “defendant's” new documentation, not the prior “medical archived records, ” to analyze grievances. Id.[3] ¶¶ 9-10. Plaintiff alleges that after filing medical complaints against Dr. Duong, Plaintiff was placed in handcuffs and sent to OHU in retaliation for the complaints, although the administrative reason provided was “for plaintiff's safety because he kept falling.” Id. ¶ 11. Plaintiff's chronological allegation of “the facts” supporting his claims ends, although additional allegations are contained in the ensuing pages of the SAC in the description of the alleged roles of the defendants and in setting forth the purported causes of action, and will be discussed by the Court as appropriate herein.

         III. STANDARD OF REVIEW

         A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether the complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to Plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Further, since Plaintiff is appearing pro se, the Court must construe the allegations of the complaint liberally and afford him the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Moreover, with respect to Plaintiff's pleading burden, the Supreme Court has held that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (internal citation omitted)).

         If the Court finds that a complaint should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is no need to prolong the litigation by permitting further amendment” where the “basic flaw” in the pleading cannot be cured by amendment); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (holding that “[b]ecause any amendment would be futile, there was no need to prolong the litigation by permitting further amendment.”).

         IV. DISCUSSION

         The SAC alleges five claims: (1) falsifying medical records; (2) deliberate indifference and a failure to provide medical care; (3) deprivation of due process and cruel and unusual punishment; (4) conspiracy; and (5) failure to hire, train, supervise, and discipline personnel properly. SAC ¶¶ 21-48. The individual claims do not limit themselves to certain defendants; as a result, the Court will treat each claim as having been alleged against each defendant.

         Section 1983 provides a method by which individuals can sue for violations of their federal rights. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002). To state a claim under § 1983, a plaintiff must allege that the violation was committed by a “person” acting under the color of State law. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). The other requisite element is that a right secured by the Constitution or laws of the United States was violated. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

         A. Claims against Kelso

         Plaintiff alleges Kelso is “the medical receiver appointed by the three-judge court” overseeing, among other things, the CDCR medical grievance procedure, and was at all relevant times acting in that capacity. SAC ¶ 14. Other than unspecific references to promulgating procedures and policy, the SAC does not allege any specific act by Kelso, instead alleging that Kelso “is responsible for the acts and conduct of his subordinates.” Id.

         The claims for damages against Kelso fail as a matter of law because Kelso, purportedly sued exclusively for his actions or inaction as a court-appointed received, is entitled to quasi-judicial immunity, and Plaintiff has not pled facts that would remove his purported claims against Kelso from the cloak of such immunity. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) (explaining doctrine of judicial immunity); Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (judicial immunity extends to court-appointed receivers); Patterson v. Kelso, 698 F. App'x 393, 394 (9th Cir. 2017) (affirming dismissal of claims against Kelso without leave to amend based upon quasi-judicial immunity as a court-appointed receiver); see also Williams v. CDCR, No. 1:14-CV-01912-JLT (PC), 2015 WL 6669816, at *6 (E.D. Cal. Oct. 29, 2015) (affirming dismissal of claims against Kelso, noting that actions or inactions by receiver in connection with prisoner's medical needs fall within absolute quasi-judicial immunity);Martinez v. Beard, No. 1:14-CV-00405-AWI-JLT (PC), 2014 WL 5305883, at *9 (E.D. Cal. Oct. 15, 2014) (finding no allegation Kelso acted outside his jurisdiction despite plaintiff's allegation that he was liable as Receiver because he acted in such a way to deny medical care).

         Plaintiff's conclusory allegations against Kelso relate solely to his role as a judicially appointed receiver. Kelso is entitled to absolute quasi-judicial immunity. As a result, ...


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