CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint, filed March 31, 2010. (Dkt. No. 1.) On June 7, 2011, the previously assigned magistrate judge issued an order stating that plaintiff had alleged cognizable Eighth Amendment and state law negligence claims against defendants Nangalama, Hamkar, Ma, Teachout, and Sweeney. (Dkt. No. 12) Pending before the court is defendants Nangalama, Hamkar, Ma, and Teachout's
Plaintiff, an inmate at California State Prison-Solano, alleges that defendants showed deliberate indifference to serious medical needs. Plaintiff's allegations concern his medical treatment both leading up to and following his January 2009 surgery to remove a cancerous growth in his neck. At all times relevant to this action, defendant doctors Nangalama, Hamkar, and Ma, and licensed vocational nurses Teachout and Sweeney, were employed at California State Prison-Sacramento (CSP-Sacramento.) (Dkt. No. 1 (Cmplt.) ¶¶ 6-10.)
In January 2008, while incarcerated at Pelican Bay State Prison, plaintiff noticed a mass under his left jaw. (Dkt. No. 1-1 at 2-3
Plaintiff was transferred to CSP-Sacramento for a September 23, 2008 appointment at the UC-Davis Medical Center. (
On September 25, 2008, plaintiff was seen by defendant Dr. Nangalama at CSP-Sacramento. Plaintiff explained to Dr. Nangalama "that he was transferred to CSP-Sac for cancer treatment. During this visit plaintiff explained that Dr. Williams, [his Primary Care Physician at Pelican Bay State Prison], explained the prognosis without the discovery of the primary site his `condition would degenerate to terminal.'" Dr. Nangalama did not physically examine plaintiff, but reviewed his file and stated: "I don't see why your [sic] down here. Your cancer is benign." (
After leaving Dr. Nagalama's office, plaintiff told a non-defendant nurse that Dr. Nangalama had diagnosed his cancer as benign and plaintiff "guessed he was going back to PBSP." (Id. ¶ 25.) The nurse "expressed concern with the diagnosis" and consulted with another non-defendant nurse, who told plaintiff to seek a second opinion and referred him to non-defendant Nurse Practioner (NP) Bakewell.
After talking with plaintiff, NP Bakewell agreed that plaintiff should "attend his ENT evaluation at UCD." However, due to a series of bureaucratic delays that did not directly involve the named defendants (except as described below), plaintiff was not seen at UCD Medical Center until December 2008. (
On November 13, 2008, plaintiff was seen by defendant Dr. Hamkar. Plaintiff explained that he had cancer with an unknown primary and that his most recent appointment with a UC-Davis ENT had been cancelled. Dr. Hamkar told plaintiff that he would submit a form requesting an urgent specialty consultation. (Cmplt. at ¶¶ 44-45.) However, on the referral form completed that day (whether by Dr. Hamkar or a nurse is not clear), the form was not clearly marked as "urgent."
On December 2, 2008, plaintiff informed nursing staff that 19 days had passed since Dr. Hamkar had issued an "urgent" referral to a ENT specialist. The nurse found the referral form that was not clearly marked as urgent, and consulted with Dr. Hamkar. Another referral form was filled out, this time correctly marked "urgent." (
On December 7, 2008, plaintiff discovered another lump in his neck just below the previous lump. (
On December 9, 2008, a specialist at the Davis Medical Center, Dr. Aouad, diagnosed plaintiff with "squamous cell carcinoma of the left neck, unknown primary." Dr. Aouad allegedly informed plaintiff that his cancer was "extremely aggressive and required urgent surgery[.]" He noted in his report that plaintiff had lost 37 pounds since January 2008, and recommended that plaintiff get "the CT scan with IV contrast ASAP and get the report, get the slides, and also I recommend that the patient getting panendo with biopsy including tonsillectomy for evaluation and assessment of the primary. Should the primary stay unknown, the patient is a candidate for a left modified radical neck dissection and radiation therapy to his neck and primary." The specialist reported that he would "make an urgent request to get the CT scan, slides, and schedule the patient for the panendo." (
On December 15, 2008, plaintiff was again seen by Dr. Hamkar. He reported that he had found another tumor, and that Dr. Aouad had recommended immediate surgery before the cancer could spread further. Dr. Hamkar made dismissive remarks. However, two days later, he submitted a request for services for a "CT neck with contrast" for plaintiff at UCD Radiology. However, the form was marked "routine" rather than "urgent." (
On January 5, 2009, plaintiff had a panedoscopy and tonsillectomy procedure for evaluation of the primary source of the cancer. On January 7, 2009, he underwent an extended modified radical neck dissection surgical procedure for squamous cell carcinoma of the left neck. (
On January 19, 2009, plaintiff was discharged from the hospital to the prison "in good and stable condition" with his "pain . . . well controlled." The discharge report stated that he "tolerated a soft diet" and was to have a "non fat diet until next clinic visit." (
Two days after his discharge, plaintiff was seen by defendant Dr. Ma. He informed Dr. Ma of his need for a non-fat, soft diet until his follow-up visit, and complained that he had not eaten since his discharge as this diet was not being provided to him. He asked Dr. Ma's assistance in acquiring this diet. Dr. Ma told plaintiff that he was aware of plaintiff's condition and discharge instructions, but allegedly refused to place plaintiff on a special diet stating, "the institution does not do special diets." (
Later that day, plaintiff attempted to obtain his two extra pillows from defendant Nurse Teachout. Teachout refused to provide him these pillows, allegedly stating that the pillows were not "medical issues." Plaintiff notified Dr. Ma that he had not received the pillows and that Teachout claimed it was a custody issue while custody claimed it was a medical issue. Dr. Ma refused to help plaintiff get his pillows and directed plaintiff back to Nurse Teachout. (
As to plaintiff's medically recommended diet, plaintiff alleges that, around January 23, 2009, Dr. Ma completed his research into plaintiff's diet issue and allegedly "informed plaintiff that diets were issued [through] the chaplain for religious purposes." However, Dr. Ma "prescribed a diet order to pharmacy" on a form stating: "Please give Mr. Smith low fat/no fat diet × 14 days." (
A few days later, plaintiff filed a grievance for not getting his non-fat, soft diet and pillows. In the course of responding to plaintiff's inmate grievance, Dr. Ma stated on February 25, 2009 (in records attached to the complaint):
(Dkt. No 1-1 at 61 (Ex. 1P).)
On January 27, 2009, plaintiff was provided only four days' worth of supplement drink and complained about the shortage to Nurse Teachout. Teachout allegedly refused to investigate. (
On March 9, 2009, plaintiff began radiation therapy. (
On April 1, 2009, plaintiff notified defendant Nurse Sweeney his supply of supplement drinks would be depleted the next morning, said he would "need it by the following morning as it was his only source of nutritional intake due to his inability to swallow." (Cmplt. at ¶ 79.) Sweeney allegedly "refused to assist plaintiff, stating it was not her job to call the warehouse, that when they deliver it she will give it to him." (
On April 3, 2009, plaintiff filed a "`sick call slip' in an attempt to acquire his Nutrien 1.5 before the weekend." That day, he was seen by Dr. Ma and Nurse Sweeney. He informed them that he was having difficulty receiving his nutritional drinks. Nurse Sweeney stated that shipments from the warehouse only came once a week, and he would have to wait until Monday. Dr. Ma refused to ask pharmacy staff why plaintiff was not receiving his prescribed nutritional drink and a mechanical soft diet. Plaintiff alleges that, as a result, he continued to suffer hunger, weight loss, stomach pains, and dizziness from lack of the supplement drink. (
The following Monday, April 6, 2009, plaintiff received a case of the supplement drinks. (
(Dkt. 1-1 at 108-109 (Ex. 2F).) In response, Nurse Sweeney wrote that plaintiff "continuously verbalized to others that he was not receiving Nutrien drinks"; that the drinks were discontinued and new orders were written for a substitute drink; and that on May 12, 009, plaintiff received the substitute drink as ordered. (
On May 11, 2009, plaintiff filed another grievance addressing the claim that his original nutritional drink had been discontinued.
(Dkt. No. 1-1- at 115-116 (Ex. 2H).) On May 12, 2009, plaintiff received 84 cans of the new supplement, and on May 18, 2009, he received another 84 cans. (Cmplt. ¶¶ 110-111; Dkt. 1-1 at 113-114 (Ex. 2H).)
Plaintiff filed the instant action on March 31, 2010. (Cmplt.) On July 28, 2010, service was ordered upon defendants Nangalama, Hamkar, Ma, Teachout and Sweeney for Eighth Amendment and state law negligence claims. (Dkt. No. 12, 22.) Four of the five defendants (all but Sweeney) originally filed a motion to dismiss on November 18, 2010. (Dkt. No. 26.) Plaintiff filed an opposition on December 14, 2010. (Dkt. No. 28.) These defendants then filed an amended, identical motion to dismiss (now pending) on December 15, 2010. (
In their opposition, defendants withdraw that portion of the motion to dismiss concerning Teachout's alleged failure to timely provide pillows to plaintiff. They continue to seek dismissal of plaintiff's claim concerning Teachout's alleged failure to assist plaintiff in obtaining a nutritional supplement drink after plaintiff's surgery. (Dkt. No. 42 at 8.)
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level."
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question,
The court may consider facts established by exhibits attached to the complaint.
Plaintiff's cause of action against defendants is for deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment.
Denial or delay of medical care for a prisoner's serious medical needs may constitute a violation of the prisoner'' Eighth and Fourteenth Amendment rights.
Furthermore, where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay caused "significant harm and that Defendants should have known this to be the case."
According to plaintiff's allegations, after reviewing plaintiff's file, Dr. Nangalama erroneously concluded in September 2008 that plaintiff's cancer was benign, despite the fact that, two months earlier, Dr. Polidore had urgently referred plaintiff to an outside specialist for evaluation and treatment of his cancer. Dr. Nangalama stated that he did not know why plaintiff was "down here," apparently meaning that he did not know why plaintiff was in Sacramento for an appointment with an ENT. That appointment was cancelled at the last minute for security reasons unrelated to plaintiff. Dr. Nangalama noted that plaintiff had a follow up appointment with an ENT scheduled for the following week; however, plaintiff left his office with the impression that he was "going back to" Pelican Bay.
Certainly plaintiff's previously diagnosed cancer qualifies a serious medical need. However, despite Dr. Nangalama's dismissive comments, plaintiff has not alleged that Dr. Nangalama interfered with his scheduled ENT appointment. Rather, plaintiff alleges that, following his appointment with Dr. Nangalama, he was referred to NP Bakewell, who confirmed that plaintiff should attend his ENT evaluation. Due to scheduling and clerical errors and a mistakenly cancelled appointment, plaintiff was not seen by an outside specialist until December 2008. (Cmplt. ¶¶ 27-54.) However, as it is not alleged that Dr. Nangalama's actions were the cause of this delay or ultimately affected the treatment plaintiff received, the Eighth Amendment claim against him should be dismissed.
On both November 13, 2008 and December 15, 2008, Dr. Hamkar allegedly was aware that plaintiff required an urgent appointment with an outside specialist for evaluation and/or treatment of his cancer. In the first instance, Dr. Hamkar's referral form was not clearly marked "urgent" and plaintiff had to obtain another referral from him 19 days later. Similarly in the second instance, Dr. Hamkar's referral form was mistakenly marked "routine." However, "[m]ere negligence in . . . treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights."
Plaintiff also alleges that Dr. Hamkar and other medical staff failed to ensure that plaintiff was provided enough nutritional supplement following his surgery, when he had difficulty eating solid food. Specifically as to Dr. Hamkar, plaintiff alleges that,
(Cmplt. ¶ 90.) Plaintiff alleges that Dr. Hamkar did not investigate the problem, and "[a]s a result plaintiff underwent seven more days without eating, resulting in hung[er] pains, weight loss and stress." (
On April 15, 2009, a UC Davis nurse contacted Dr. Hamkar concerning the availablilty of supplement drinks for plaintiff. Dr. Hamkar was allegedly dismissive, referring to plaintiff and other inmates as "game players," but said he would "see what [he could] sort out." (
Plaintiff further alleges that Dr. Hamkar and other medical staff knew in advance that his supplement, Nutrien, was being discontinued, but failed to provide plaintiff any alternative nutrition until the replacement supplement was delivered on May 12, 2009. (Cmplt. ¶¶ 105, 108-110.) As a result, plaintiff did not have enough supplement from May 7 through May 11, 2009, and suffered "pain from the blister in his mouth, starvation, stomach pains, weakness and weight loss." (
Construing the pleading in the light most favorable to plaintiff, the court finds that plaintiff has stated an Eighth Amendment claim as to Dr. Hamkar's, specifically that Dr. Hamkar was deliberately indifferent to plaintiff's dietary requirements during his recovery from cancer surgery.
Plaintiff alleges that Dr. Ma was deliberately indifferent in failing to provide plaintiff a special non-fat diet after plaintiff's surgery. However, it appears from attachments to the complaint that on January 22, 2009, Dr. Ma gave plaintiff the option of transferring to other areas of the prison where special diets were available for non-religious reasons, and plaintiff refused. (Dkt. No. 1-1 at 61 (1P).) On January 23, 2009, Dr. Ma prescribed plaintiff two cans, twice a day, of nutritional supplement. (Cmplt. ¶ 74.) The court does not find that these allegations state a claim of deliberate indifference as to plaintiff's special diet.
Plaintiff also alleges that Dr. Ma was deliberately indifferent by failing to provide plaintiff's medically-ordered pillows after his discharge. Dr. Ma knew plaintiff required these pillows per his discharge order, but allegedly did nothing to make sure that plaintiff received them and instead referred him to Nurse Teachout, who had already refused to help him obtain the pillows. Whether or not an outside medical specialist ordered the pillows connection with plaintiff's post-surgical fluid retention, plaintiff alleges that, without the pillows, he repeatedly gagged on phlegm and saliva at night for over two weeks until the pillows were provided.
It well-established that deliberate indifference to a prisoner's medical needs can be demonstrated in multiple ways, as an Eighth Amendment violation may appear when prison officials deny or delay access to medical care, or intentionally interfere with medical treatment once prescribed.
Here, construing the pleadings in the light most favorable to plaintiff, the court finds that plaintiff has alleged that Dr. Ma was deliberately indifferent concerning plaintiff's post-surgical discharge order stating that plaintiff should sleep with his head elevated.
Defendants have withdrawn their motion to dismiss the claim against Nurse Teachout for failing to provide plaintiff with pillows after his surgery. (Dkt. No. 42 at 8.) At issue is whether plaintiff has stated a claim under Rule 12(b)(6) concerning Nurse Teachout's alleged failure to assist plaintiff in obtaining enough nutritional supplement. Plaintiff alleges that, on January 27, 2009, Teachout refused to document or look into why plaintiff had only received four days' worth of nutritional supplement. (Cmplt. ¶¶ 76-77.) Attachments to the complaint further indicate that, on May 11, 2009, plaintiff complained to Teachout that he had nothing to eat or drink after Nutrien was discontinued and shipments of the replacement drink were delayed. Teachout advised him to keep putting requests into the warehouse, but did not do anything further to assist him getting food or drink that he could eat during this period. However, the next day, plaintiff received 84 cans of the new supplement. The court concludes that these allegations are insufficient to plead deliberate indifference as to Teachout, and will recommend dismissal of the supplement-related claim.
As discussed above, the court finds that plaintiff has stated Eighth Amendment claims as to defendants Hamkar and Ma. The court now turns to defense counsel's contention that these defendants are entitled to qualified immunity. "Government officials enjoy qualified immunity from civil damages unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'"
Although the court was once required to answer these questions in order, the United States Supreme Court has clarified that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory."
Here, plaintiff alleges that defendants were deliberately indifferent to his medically-ordered requirements for post-surgical nutrition and care. At this juncture, the court cannot say what admissible evidence will ultimately prove. At the pleading stage, however, the court must accept plaintiff's allegations as true. As noted above, if proven, plaintiff's allegations are sufficient to establish that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Moreover, having determined that defendants' alleged conduct is sufficient to violate the Eighth Amendment, the court observes that by 2008, "the general law regarding the medical treatment of prisoners was clearly established," and "it was also clearly established that [prison staff] could not intentionally deny or delay access to medical care."
Accordingly, defendants' motion to dismiss based on the affirmative defense of qualified immunity should also be denied.
Plaintiff also asserts negligence claims against defendants arising under California based on the same allegations that underlie his federal constitutional claims.
Where a federal court has jurisdiction pursuant to 42 U.S.C. § 1983, the court may exercise "pendent" or "supplemental" jurisdiction over closely related state law claims asserted in the complaint. See Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004) (citing 28 U.S.C. § 1367(a)). "[A] plaintiff's pendent state law claims against a state or state employees are barred unless the plaintiff has complied with the requirements of the California Tort Claims Act (`CTCA') before commencing the civil action." Wayne v. Leal, 2009 WL 2406299, at *7 (S.D. Cal. 2009) (citing Ortega v. O'Connor, 764 F.2d 703, 707 (9th Cir.1985), rev'd in part on other grounds, 480 U.S. 709 (1987)); see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988) (affirming dismissal of pendent state law claims against public employee where plaintiff failed to allege compliance with the CTCA). The CTCA applies to claims brought against state employees "for injury resulting from an act or omission in the scope of his employment as a public employee," Cal. Gov't Code § 950.2, and requires that tort claims against state employees be presented to the California Victim Compensation and Government Claims Board (Board), formerly known as the State Board of Control, no more than six months after the cause of action accrues, Cal. Gov't Code §§ 910, 911.2.
Here, plaintiff filed a claim with the Board on March 20, 2009. On May 28, 2009, the Board mailed him a notice stating that they had rejected his claim. The notice stated that plaintiff had "six months from the date this notice was . . . deposited in the mail to file a court action on this claim." (Cmplt., Ex. A.) Pursuant to Cal. Gov't Code § 945.6(a)(1), to be timely, an action must be commenced within 182 days or six months after notice of rejection of the claim is served or placed in the mail, which ever period is longer. Gonzales v. County of Los Angeles, 199 Cal.App.3d 601, 614 (1988). However, Smith did not constructively file the instant action until nearly ten months later, on March 24, 2010 (per the mailbox rule). While the district court has discretion to exercise jurisdiction over supplemental state law claims, such discretion can only be exercised if the claim is timely brought under California law. Thus, the undersigned concludes that plaintiff's state law claims should be dismissed.
ACCORDINGLY, IT IS HEREBY ORDERED THAT the Clerk of Court shall assign a district judge to this action.
IT IS HEREBY RECOMMENDED THAT:
1. Defendants' December 15, 2010 motion to dismiss be granted in part and denied in part, as follows:
a. Granted as to Nangalama, Hamkar (pre-surgery claim), Ma (special diet claim), and Teachout;
b. Denied as to Hamkar (nutritional supplement claim) and Ma (pillow claim).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
