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Jorgenson v. United States

United States District Court, E.D. California

September 12, 2019

PAUL JORGENSON, Plaintiff,
v.
UNITED STATES OF AMERICA., et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS EMC AND RANDHAWA'S MOTIONS TO DISMISS BE GRANTED IN PART AND DENIED IN PART (ECF NOS. 29 & 34) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

         I. BACKGROUND

         Paul Jorgenson (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis in this action. This case now proceeds on Plaintiff's Second Amended Complaint (“SAC”), which was filed on July 12, 2018. (ECF No. 19.) This case is proceeding “on Plaintiff's FTCA claim against the United States, his Eighth Amendment Bivens claim against the four unknown correctional officers, and his state tort claims for medical negligence and battery against Defendants Haak, Randhawa, and Emanuel Medical Center.” (ECF No. 21, p. 2.)

         On December 17, 2018, defendant Emanuel Medical Center (“EMC”) and defendant Jaspal Randhawa (“Randhawa”) filed a partial motion to dismiss and a motion to strike Plaintiff's claim for punitive damages.[1] (ECF Nos. 29, 30, 31, 34, & 35.) On February 7, 2019, Plaintiff filed his opposition to defendants EMC and Randhawa's motion to dismiss. (ECF No. 58.) Defendants EMC and Randhawa filed their reply on February 14, 2019. (ECF No. 60.) On March 8, 2019, defendants EMC and Randhawa filed a notice stating that although Plaintiff opposed the motion to dismiss, he failed to oppose the motion to strike. (ECF No. 67.)

         The issue of Plaintiff's consent to the medical procedures he underwent was converted to a motion for summary judgment. (ECF Nos. 70 and 74.) On June 24, 2019, Plaintiff filed a supplemental response, including evidence. (ECF No. 78.) On July 25, 2019, EMC and Randhawa filed their reply to Plaintiff's supplemental response. (ECF No. 82.)

         For the reasons described below, the Court will recommend that defendants EMC and Randhawa's motions to dismiss be granted in part and denied in part. The Court will address the portion of the motion to dismiss that was converted to a motion for summary judgment in a separate order.

         II. SUMMARY OF PLAINTIFF'S SECOND AMENDED COMPLAINT

         At approximately 8:00 a.m. on the morning of November 21, 2016, four U.S.P. Atwater correctional officers arrived at Plaintiff's cell and informed him that he was going on a medical trip. Plaintiff told the officer in charge that he had not requested any medical treatment either verbally or in written form, and that he had a right to refuse non-emergency medical treatment. Nevertheless, Plaintiff was placed in leg shackles, as well as hand-cuffs secured with a “black box” and waist chain, and then taken to Emanuel Hospital Center. The restraints were never completely removed during the course of Plaintiff's hospital stay.

         These four unknown correctional officers were the staff that provided security at the Emanuel Hospital Center, and were charged with guarding Plaintiff at Emanuel Medical Center from November 21 to November 23, 2016. Plaintiff was kept chained hand and foot to the hospital bed. The four officers also kept the television set at the highest volume during Plaintiff's entire stay at the hospital. This high volume subjected Plaintiff to sleep deprivation.

         After arriving at the Emanuel Medical Center on November 21, at approximately 10:00 a.m., Plaintiff was ordered to sign some “preliminary paperwork” by the guards and Emanuel Medical Center staff. Plaintiff again advised the officer in charge that he had not requested any medical treatment and also informed the Emanuel Medical Center staff that he had a right to refuse non-emergency medical treatment.

         Plaintiff was then placed supine in a CT scanner. After CT localization of a portion in the right hepatic lobe of the liver for the biopsy was obtained, a lidocaine anesthetic was administered and a 19-gauge guide needle was advanced into the right hepatic lobe. 20-gauge lung core samples were obtained and placed in a preservative solution for later examination. The procedure was negligently performed due to staff inattention and in wanton disregard of Plaintiff's requests to refuse treatment. Plaintiff suffered an immediate pneumothorax collapse of his right lung.

         At the CT procedure, the attending physician was defendant Richard B. Haak, M.D., and defendant Jaspal Randhawa was the technologist. Other personnel were involved, but Plaintiff does not know their names.

         A right pleural chest tube was implanted and introduced into the right pleural cavity. Plaintiff experienced immediate dizziness, nausea, and impaired breathing. He was admitted as an “in patient” and placed in a bed in a secure ward. Plaintiff was chained to the bed for three days. He was placed on an external suction machine as a means to inflate his right lung. He was given pain medications, but they were ineffective and he continued to experience substantial pain and anxiety during his stay.

         By late afternoon of November 23, 2016, all medical intubations were removed and Plaintiff was returned to the penitentiary. Plaintiff did not give his consent for a livery biopsy, a collapsed lung, the intubation of the external suction machine, or being chained to the bed.

         III. DEFENDANTS EMC AND RANDHAWA'S MOTIONS TO DISMISS

         a. Legal Standards for Motions to Dismiss

         In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

         A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. See Iqbal, 556 U.S. at 679. Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236 (1974).

         In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Gumataotao v. Dir. of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001).

         b. Defendants EMC and Randhawa's Position

         Defendants EMC and Randhawa move “the court for an Order to Dismiss the plaintiff's claims for lack of informed consent and battery within the Second Amended Complaint … pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6), on the grounds that those causes of action fail to state a plausible claim for relief as to the hospital and technologist defendants.” (ECF No. 29 at 2.)

         Defendants EMC and Randhawa argue that, under California law, the duty to obtain informed consent rests with the physician. (Id. at 5.) “[T]he scope of practice statutorily allowed for the hospital and technologist are limited.” (Id.) “Neither EMC nor RANDHAWA are physicians, nor are they legally allowed to obtain informed consent.” (Id.). ...


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