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Bradford v. Khamooshian

United States District Court, S.D. California

July 15, 2019

RAYMOND ALFORD BRADFORD, CDCR #H-16258, Plaintiff,
v.
K. KHAMOOSHIAN; ZHANG; VOONG; ALVARADO HOSPITAL MEDICAL CENTER; CITY OF SAN DIEGO; COUNTY OF SAN DIEGO; STATE OF CALIFORNIA; LISA L. FREUND; BRANDON D. MERRITT; MATTHEW ROSS WILSON; LARAYA M. PARNELL, Defendants.

         ORDER: (1) GRANTING DEFENDANTS' MOTIONS TO DISMISS FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM FED. R. CIV. P. 12(B)(6); (2) SUA SPONTE DISMISSING REMAINING CLAIMS AND DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(E); AND (3) DENYING MOTION TO DISMISS FOR INVALID SERVICE OF SUMMONS AS MOOT [ECF NOS. 108, 109, 117, 122, 124, 133]

          CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE

         Plaintiff Raymond Alford Bradford, currently incarcerated at Corcoran State Prison, is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff's first complaint was brought only against two individuals, Defendants Zhang and Khamooshian, and he alleged Eighth Amendment violations, gross negligence, and medical malpractice. (ECF No. 1.)[1] The Court granted Zhang and Khamooshian's motions to dismiss but granted Plaintiff leave to file a first amended complaint. (ECF No. 89.) He did so and greatly expanded on the claims from his original complaint. In his First Amended Complaint (“FAC”), Plaintiff alleges that all named Defendants violated his constitutional and state law rights while he was housed at the Richard J. Donovan Correctional Facility (“RJD”). (“FAC, ” ECF No. 97.) Plaintiff also alleges that his constitutional and state law rights have been violated at various other state prisons as well.

         Currently before this Court are Defendants Zhang, Khamooshian, Freund, Merritt, and Voong's Motions to Dismiss Plaintiff's FAC pursuant to Fed.R.Civ.P. 12(b)(6). (ECF Nos. 108, 109, 117, 122, 133.) In addition, Defendants Parnell and Wilson have filed a Motion to Dismiss for Invalid Service of Summons. (ECF No. 124.) Plaintiff filed an Opposition to the Motions filed by Zhang, Khamooshian, and Merritt. (ECF Nos. 112, 131.) Defendants Khamooshian and Merritt have filed Replies. (EFC Nos. 115, 239.)

         Having carefully considered Defendants' Motions, Plaintiff's FAC, his Oppositions, and Defendants' Replies as submitted, the Court GRANTS Defendants' Motions to Dismiss Plaintiff's FAC pursuant to Fed.R.Civ.P. 12(b)(6). The Court also sua sponte DISMISSES the remaining claims and Defendants pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A. Because the Court also finds Plaintiff's claims could not be cured by alleging additional facts, the Court DENIES leave to amend as futile.

         I. Plaintiff's Allegations

         Plaintiff “arrived at RJD” on August 29, 2017. (FAC at 3.) Plaintiff “complained repeatedly to the medical staff” that he required “emergency treatment” for a variety of medical issues. (Id.) Specifically, Plaintiff alleges that he was experiencing “rectal pain, ” “active bleeding, ” “bloody diarrhea, mucus-pus loose stools, colitis flare up, proctitis, diverticulosis, and pain in his penis area.” (Id.)

         Plaintiff claims that “rectal bleeding from a flare up of colitis placed [his] life at risk of serious injury or fatal complications due to the blood thinner.” (Id.) Plaintiff alleges Defendant Zhang “denied, [and] delayed access to emergency medically indicated treatment” when he failed to “admit Plaintiff to the prison's infirmary before and after the colonoscopy results.” (Id.) Plaintiff claims that a “gastroenterologist report” provided to Zhang “proved that Plaintiff suffered from an active ‘flare up' colitis, rectal bleeding” along with other medical issues. (Id. at 4.)

         Plaintiff alleges that Zhang “would have the prison guards retaliate against [him] by daily harassing him by stealing his legal supplies, mattress, food, hygiene, [and] incontinence supplies.” (Id.) He further alleges that a “rectal exam was used to inflict unnecessary pain to discourage Plaintiff from seeking treatment” and to “make Plaintiff sign a refusal of treatment form.” (Id.) Plaintiff “immediately filed an emergency medical appeal and while it was pending, ” he “filed this instant cause of action.” (Id.) As a result of this action, Plaintiff claims he was “framed by the prison guards for (2) attempted murders.” (Id.) Correctional counselors “G. Pickett, J. Robles, and M. Wallace” purportedly “told Plaintiff he would find trouble if he did not drop and stop filing the lawsuit against prison officials.” (Id.)

         On August 30, 2017, Plaintiff was “transferred to Alvarado Hospital Medical Center due to excruciating rectal pain, bloody diarrhea, mucus-pus stools, penis area pain, colitis flare up, proctitis, [and] diverticulosis.” (Id. at 5.) Plaintiff also claims he has a “blood clotting disorder” and is “on anticoagulation medication.” (Id.) Plaintiff was admitted to this hospital for “overnight observation” by “treating physician J. Whitley, M.D.” (Id.)

         Plaintiff claims that his “blood test results were extremely high” which placed Plaintiff “at risk of excessive bleeding complications with colitis, an active flare up.” (Id.) The following day, Defendant Khamooshian informed Plaintiff that his blood test results and rectal exam were “all normal.” (Id.) Plaintiff alleges that the examination by Khamooshian took “approximately [five] minutes.” (Id.) He further claims Khamooshian “set out to undermine the admitting physician J. Whitley who actually did the rectal exam.” (Id.) Khamooshian purportedly informed Plaintiff that he “did not have colitis or active bleeding.” (Id. at 6.) Plaintiff claims that Khamooshian tried to “convince” him that the other physician was “lying” and this “interference” by Khamooshian was to “cause fatal complications and unnecessary infliction of pain.” (Id.)

         Two weeks later, on September 14, 2017, Plaintiff “received a colonoscopy.” (Id.) He alleges that the gastroenterologist report “proved that Plaintiff suffered from an active ‘flare up' [of his] ongoing colitis, massive rectal bleeding, proctitis, weight loss, stomach cramps, and diverticulosis.” (Id. at 6-7.) Plaintiff claims he was provided “copies of his medical records from Alvarado Hospital Medical Center” which “proves” Khamooshian “lied about Plaintiff's colitis active flare up, massive rectal bleeding, proctitis, weight loss, stomach cramps, diverticulosis, and pain/discomfort.” (Id. at 7.) Plaintiff alleges Khamooshian's actions “caused Plaintiff's condition to deteriorate.” (Id.)

         Plaintiff alleges he was “brutally attacked by the prison guards shortly after” he filed this action on May 17, 2018. (Id. at 8.) He further claims that he “received a warning by several prison officials, including the Correctional Counselor G. Pickett, that sounded more like a verbal threat to drop and stop pursuing litigation and if he continued filing he would be headed for trouble.” (Id.) As a result, Plaintiff filed in this case a motion for injunctive relief, requesting he be “placed in protective housing unit due to his safety concerns.” (Id.) However, this request was denied. Plaintiff claims he was “framed for, and charged with (2) bogus (RVR 115) for attempted murder on a peace officer and inmate.” (Id.)

         Plaintiff claims “prison guards attacked [him] on three separate occasions” in May, August, and October of 2018 “in retaliation for filing civil lawsuits.” (Id. at 9.) Plaintiff alleges as a result of these attacks he suffered from a “completely collapsed lung, pneumonia, left lower lobe head/brain injury, spinal cord damage, right mid finger fracture, facial swelling, ” and “pepper gas spray burning eyes.” (Id.) Plaintiff also claims, “prison guards poured feces all over Plaintiff's boxes of legal property at [California State Prison - Los Angeles County (“CSP-LAC”)].” (Id.) While housed at RJD, Plaintiff alleges he “lost his legal property.” (Id.) Plaintiff argues that the “prison guards were acting in concert with the Deputy Attorney General's Office (Lisa L. Freund, Laraya M. Parnell, Kelly Ariana Samson, Matthew Ross Wilson, Thomas P. Feher and Franklin D. Gordon) to obstruct justice” and were denying Plaintiff “meaningful access to court by stealing his legal papers.” (Id.) Plaintiff claims he is a “victim of an active and ongoing conspiracy to commit murder against him.” (Id.)

         II. Defendants' Motions to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

          Standard of Review

         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City of Carlsbad, 207 F.Supp.3d 1107, 1114 (S.D. Cal. Mar. 20, 2018).

         Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim's substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide a motion to dismiss, ” including the exhibits attached to it. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); see Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (“[M]aterial which is properly submitted as part of the complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss (citation omitted)). However, exhibits that contradict the claims in a complaint may fatally undermine the complaint's allegations. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead himself out of a claim by including . . . details contrary to his claims”) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint”))); see also Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained in documents attached to the complaint” to determine whether the complaint states a claim for relief).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Villa v. Maricopa County, 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or the “formulaic recitation of the elements of a cause of action, ” Twombly, 550 U.S. at 555, which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 U.S. at 678-79. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual allegations, '” Rule 8 nevertheless “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         Therefore, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes omitted); accord Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences [drawn] from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).

         B. Eighth Amendment - Inadequate Medical Care Claims

         Plaintiff alleges Defendants Zhang and Khamooshian violated his Eighth Amendment rights.

         Only “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (citation and internal quotation marks omitted). “A determination of ‘deliberate indifference' involves an examination of two elements: (1) the seriousness of the prisoner's medical need and (2) the nature of the defendant's response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104); see also Wilhelm v. Rotman, 680 F.3d 1108, 1113 (9th Cir. 2012).

         First, “[b]ecause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.'” Hudson v. McMillian, 503 U.S. 1, 9 (1992), citing Estelle, 429 U.S. at 103-04. “A ‘serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.'” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). “The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a ‘serious' need for medical treatment.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).

         Here, Defendants do not argue that Plaintiff has failed to allege facts to plausibly show that his medical needs were ‘serious,' and the Court finds Plaintiff's FAC is sufficiently pled in this regard.

         Therefore, the Court must next decide whether Plaintiff's FAC further contains sufficient “factual content” to show that any named Defendant acted with “deliberate indifference” to his needs. McGuckin, 914 F.2d. at 1060; see also Jett, 439 F.3d at 1096. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)

         1. Claims against Zhang

         In his FAC, Plaintiff alleges Defendant Zhang “denied, [and] delayed access to emergency medically indicated treatment” when he failed to “admit Plaintiff to the prison's infirmary before and after the colonoscopy results.” (FAC at 3.) Plaintiff claims that a “gastroenterologist report” provided to Zhang “proved that Plaintiff suffered from an active ‘flare up' colitis, rectal bleeding” along with other medical issues. (Id. at 4.) He further alleges that a “rectal exam was used [by Zhang] to inflict unnecessary pain to discourage Plaintiff from seeking treatment” and to “make Plaintiff sign a refusal of treatment form.” (Id.) Plaintiff alleges that Zhang was lying when he told Plaintiff that “no pain medication would be given” until Zhang “could find the test results he had access to or possession of already.” (Id. at 26.) He further claims that Zhang purportedly lied when he told Plaintiff “that all lab studies” from Alvarado Hospital were “normal.” (Id. at 27.)

         Zhang moves to dismiss this claim because he argues the allegations are insufficient to support a claim of deliberate indifference. (ECF No. 108-1, at 15.) Specifically, Zhang argues Plaintiff's claims merely demonstrate a “difference of opinion as to how Plaintiff's medical care should be handled.” (Id.) In response to Zhang's Motion, Plaintiff filed a “Motion to Strike Defendants' Motion to Dismiss” and a “Request for Order for Legal Property and Medical Records” which has been liberally construed as Plaintiff's Opposition. (ECF No. 112.) However, in this Opposition, Plaintiff offers no factual or legal rebuttal to Defendant's position.

         The Court finds that the allegations in Plaintiff's FAC fall far short of finding “deliberate indifference” on the part of Zhang. His allegations that Zhang refused to admit him to the infirmary and conducted a rectal exam which Plaintiff believed was unnecessary demonstrate nothing more than a difference of opinion as to the course of Plaintiff's medical treatment. A “difference of opinion between a physician and the prisoner-or between medical professionals-concerning what medical care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citation omitted), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc); Wilhelm, 680 F.3d at 1122-23. Instead, Plaintiff must plead facts sufficient to “show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendant[] chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citation and internal quotations omitted). He has failed to do this.

         Moreover, to the extent that Plaintiff claims Zhang's treatment of his medical condition constituted medical malpractice, these claims are also insufficient to find that Zhang was “deliberately indifferent” to his serious medical needs. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Gamble, 429 U.S. at 106; see, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974 F.2d at 1050. Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

         Finally, Plaintiff's claims that Zhang lied about his test results, without more substantial factual allegations, also fails to rise to the level of “deliberate indifference.” As set forth above, a claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or the “formulaic recitation of the elements of a cause of action, ” Twombly, 550 U.S. at 555, which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556 U.S. at 678-79.

         Accordingly, the Court GRANTS Defendant Zhang's Motion to Dismiss Plaintiff's Eighth Amendment claims.

         2. Claims against Defendant Khamooshian

         Plaintiff alleges even less interaction with Khamooshian. Khamooshian is alleged to be a doctor who examined Plaintiff for only “five minutes” when Plaintiff was admitted to Alvarado Hospital. (FAC at 5.) When Khamooshian examined Plaintiff, he informed him that his blood test results and rectal exam were “all normal.” (Id.) Khamooshian purportedly informed Plaintiff that he “did not have colitis or active bleeding.” (Id. at 6.) Plaintiff claims that Khamooshian tried to “convince” him that the other physician was “lying” and this “interference” by Khamooshian was to “cause fatal complications and unnecessary infliction of pain.” (Id.) Plaintiff was discharged from Alvarado Hospital after his examination by Khamooshian. (Id. at 6-7.) There are no allegations that Plaintiff had any interaction with Khamooshian after he was discharged from Alvarado Hospital or that Khamooshian was involved in any way in Plaintiff's ongoing medical treatment.

         In Khamooshian's Motion, he argues that Plaintiff “fails to plead more than a naked assertion that Dr. Khamooshian was ‘lying' about his medical condition and test results.” (ECF No. 109-1 at 18.) In his Opposition, Plaintiff argues Defendant's Motion is “frivolous under fraud, it's scandalous, immaterial, redundant, unfounded and serves no other purpose than to cause unduly delay, prejudicial effect on Plaintiff's case.” (ECF No. 112 at 3.)

         Plaintiff's entire claim rests on what he claims was a short interaction with Khamooshian and he does not allege that Khamooshian played any role in Plaintiff's ongoing medical treatment or lack of medical treatment. Plaintiff's only allegation relating to “deliberate indifference” is his claim that Khamooshian was lying about his test results. Plaintiff fails to allege facts sufficient to show how this one alleged act by Khamooshian caused him any injury.

         Thus, to the extent that Plaintiff is claiming that Khamooshian's actions caused a delay in his treatment, he has failed to provide the adequate showing. Plaintiff alleges that Khamooshian actions “caused Plaintiff's condition to ...


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