United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANT HAAK’S PARTIAL MOTION TO DISMISS BE DENIED
(ECF NO. 46) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN
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.)
January 17, 2019, defendant Haak filed a partial motion to
dismiss. (ECF No. 46.) On February 7, 2019, Plaintiff filed
his opposition to defendant Haak’s motion to dismiss.
(ECF No. 57.) Defendant Haak filed his reply on February 12,
2019. (ECF No. 59.)
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 17, 2019, defendant Haak filed his reply to
Plaintiff’s supplemental response. (ECF No. 81.)
reasons described below, the Court will recommend that
defendant Haak’s partial motion to dismiss be denied.
The Court will address the portion of the motion to dismiss
that was converted to a motion for summary judgment in a
SUMMARY OF PLAINTIFF’S SECOND AMENDED
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.
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.
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.
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.
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.
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.
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.
HAAK’S MOTION TO DISMISS
Legal Standards for Motions to Dismiss
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)).
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).
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 ...