Nez v. United States ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Carnell Charley, et al. No. CV-19-08300-PCT-SMB 10 Plaintiffs, ORDER 11 v. 12 United States of America, 13 Defendant. 14 15 Pending before the Court is Defendant United States’ (the “Government”) Second 16 Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. 29.) Plaintiffs filed a 17 response, (Doc. 36), and the Government replied. (Doc. 40.) The parties did not request 18 oral argument, and the Court elects to rule without oral argument. 19 I. BACKGROUND 20 This is a wrongful death action arising out of alleged medical malpractice by Sage 21 Memorial Hospital (“SMH”) employees during their treatment of Harrison Charley 22 (“Decedent”). SMH is an Indian Health Service facility in Ganado, Arizona operating 23 under the jurisdiction of the United States Department of Health and Human Services 24 (“DHHS”) pursuant to a contract under the Indian Self-Determination and Educational 25 Assistance Act (“ISDEAA”). Plaintiffs’ Second Amended Complaint (“SAC”) alleges that 26 SMH employees are deemed employees of the United States for the purposes of the Federal 27 Torts Claims Act (“FTCA”). 28 The SAC’s allegations are largely the same as in the Plaintiff’s First Amended 1 Complaint with a few significant differences. Therefore, the Court will not again recite the 2 allegations in this order.1 3 II. LEGAL STANDARD 4 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 5 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 6 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 7 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 8 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Dismissal 9 under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence 10 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 11 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal 12 theory will survive a motion to dismiss if it contains sufficient factual matter, which, if 13 accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 14 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Facial plausibility exists if 15 the pleader sets forth “factual content that allows the court to draw the reasonable inference 16 that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the 17 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 18 Id. Plausibility does not equal “probability,” but requires “more than a sheer possibility 19 that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely 20 consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and 21 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 22 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 23 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 24 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 25 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 26 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 27 1 The Court’s recitation of the factual allegations in Plaintiffs’ first Amended Complaint 28 can be found in the Court’s previous order ruling on the Government’s first Motion to Dismiss. (Doc. 25.) 1 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 2 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 3 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 4 documents attached to the complaint, documents incorporated by reference in the 5 complaint, or matters of judicial notice—without converting the motion to dismiss into a 6 motion for summary judgment.” Id. at 908. 7 III. ANALYSIS 8 Plaintiffs bring this negligence case under the FTCA, 28 U.S.C. §§ 2671, et seq., as 9 statutory beneficiaries of the Decedent pursuant to Arizona’s Wrongful Death statute. 10 A.R.S. § 12-612. “[T]he extent of the United States’ liability under the FTCA is generally 11 determined by reference to state law.” Molzof v. United States, 502 U.S. 301, 305 (1992); 12 28 U.S.C. § 2674. A claim of negligence in Arizona requires proof of four elements: “‘(1) 13 a duty requiring defendant to conform to a certain standard of care; (2) breach of that 14 standard; (3) a causal connection between the breach and the resulting injury; (4) actual 15 damages.’” Dinsmoor v. City of Phoenix, 468 P.3d 745, 749 (Ariz. Ct. App. 2020), review 16 granted (Dec. 15, 2020) (quoting Quiroz v. ALCOA Inc., 416 P.3d 824, 827-28 (Ariz. 17 2018)). 18 The Government argues that Plaintiffs’ SAC should be dismissed for largely the 19 same reason that the first Amended Complaint was dismissed. Namely, the Government 20 points out, “Plaintiff [sic] has again failed to identify two putative health care providers 21 whom they allege helped cause Charley’s injuries and death, and whom Plaintiffs 22 characterizes as ‘unidentified tortfeasors’ ‘1’ and ‘2’ in ¶ 43 (c) and (d) of the Second 23 Amended Complaint, subjecting Plaintiff’s [sic] allegations against them to dismissal since 24 they do not state a claim under Rule 12 or Ashcroft v. Iqbal, 556 U.S. 662 (2009).” (Doc. 25 29 at 2.) 26 A. Court’s Previous Order 27 In the Court’s previous ruling on the Government’s first motion to dismiss, the 28 Court took exception with the lack of specificity in Plaintiffs’ Amended Complaint. 1 Specifically, the Court stated, “Plaintiffs never identify who the employees are that 2 engaged in a specific negligent act or omission. They provide a list of employees that may 3 have been involved at ¶ 33 of the Amended Complaint but Plaintiffs do not tie any of them 4 to any specific act or omission.” (Doc. 25 at 7-8.) The Court went on to find that the 5 Plaintiffs fell short of the specificity required by Iqbal. The Court also noted that Plaintiffs 6 failed to comply with A.R.S. § 12-2603, which requires a party asserting a claim against a 7 healthcare professional to file a written statement at the outset of the case certifying 8 whether or not expert opinion testimony will be necessary to prove the healthcare 9 professional standard of care or liability for the claim. (Doc. 25 at 8-9.) Lastly, the Court 10 barred Plaintiffs from asserting any claim against the United States based on negligence of 11 Dr. Chen and Dr. Schuler since they were found to be independent contractors. (Doc. 25 at 12 9.) 13 B. Second Motion to Dismiss 14 1. Sufficiency of Factual Allegations 15 The Government first argues that Plaintiffs have again failed to identify two of the 16 medical providers who engaged in medical negligence. (Doc. 29 at 6.) Accordingly, the 17 Government contends that Plaintiffs’ SAC again falls short of what is required by Iqbal 18 and should be dismissed pursuant to Rule 12(b)(6). 19 Plaintiffs acknowledge that they have again failed to identify the healthcare 20 professional who provided care to the Decedent on October 29, 2013 and November 3, 21 2013. (Doc. 36 at 3.) However, Plaintiffs reason that whoever provided the Decedent with 22 care on those dates cannot be independent contractors based on answers the Government 23 provided to discovery responses from prior litigation. (Doc. 36 at 3-4.) Additionally, 24 Plaintiffs complain that the failure of the Government to adequately answer discovery 25 responses from prior litigation resulted in their failure to identify the two providers. 26 Further, Plaintiffs explain that they did not object to the discovery responses in the prior 27 litigation because they did not know that they were incomplete. (Doc. 36 at 11-12.) 28 Plaintiffs also accuse the Government of attempting to hide the identity of the two 1 healthcare providers. (Doc. 36 at 13.) Plaintiffs also contend that they have adequately pled 2 negligence claims against the two other providers they have identified in the SAC—Dr. 3 Harley Schalesky and Dr. Mehdy Zarandy—both of whom are federal employees. (Doc. 4 36 at 10.) 5 Absent narrowly limited circumstances, the Court constrains its inquiry on a motion 6 to dismiss to the four corners of the complaint. See CitiMortgage, Inc. v. Country Gardens 7 Owners’ Ass’n, No. 2:13-CV-02039-GMN, 2013 WL 6409951, at *8 (D. Nev. Dec. 5, 8 2013). Accordingly, the Government’s failure to properly respond to discovery responses 9 are irrelevant to the Government’s current motion. Thus, the Court will consider only the 10 factual allegations within the four corners of Plaintiffs’ SAC. 11 After examining the SAC, the Court finds that it now contains sufficient factual 12 allegations to state a claim of negligence against the Government for the treatment the 13 Decedent received from federal employees at SMH. The SAC alleges additional facts tying 14 federal employees, Dr. Schalesky and Dr. Zarandy, to allegedly negligent acts. (See Doc. 15 26 ¶¶ 29, 31, 49((b)(e).) Specifically, the SAC alleges that Dr. Schalesky and Dr. Zarandy 16 examined and took care of the Decedent from September 15, 2013 to September 20, 2013. 17 (Doc. 26 ¶¶ 26-27.) It alleges that Dr. Zarandy and Dr. Schalesky ordered no imaging for 18 the Decedent’s severe lower back pain which would have “shown the extent of the damage 19 to Mr. Charley’s spine.” (Id. ¶¶ 28, 29, 49(b).) Further, the SAC notes that Dr. Zarandy 20 “gave no instruction or order involving any follow-up for sepsis or for further diagnostic 21 testing for his severe back pain. He failed to order any lumbar imaging and failed to follow 22 up adequately on the sepsis diagnosis.” (Id. ¶ 31.) Plaintiffs allege that this failure to take 23 imaging and the failure to “recognize that [the Decedent’s] continuing back pain and his 24 history of pain radiating down both legs were signs of an infectious disease process 25 (osteomyelitis) that was destroying [Decedent’s] lumbar spine” constituted negligent care. 26 (Id. ¶ 49(b), (f).) Further, the SAC alleges that Dr. Schalesky and Dr. Zarandy’s failure to 27 order additional labs between September 15, 2013 and September 20, 2013 constituted 28 negligent care. (Id. ¶¶ 29, 49(e).) It also alleges that the Decedent later died “from the 1 || misdiagnosis and delayed diagnosis of osteomyelitis and lumbar infections, and from || improper and untimely treatment.” (/d. § 40.) The Court finds that the allegations, taken as || true, are sufficient to support the SAC’s claim of negligence against the Government. 4 The claims related to treatment provide on October 29, 2013 and November 3, 2013 5 || are not sufficiently supported by the Second Amended Complaint and will be precluded. 6|| As stated in the earlier order, “Counsel for Plaintiffs has an obligation to research the || allegations prior to filing a Complaint.” (Doc. 25 at 8.) It is too late to complain that 8 || Plaintiff has been unable to identify the providers she claims are responsible. 9 The Court declines to address whether dismissal is appropriate under A.R.S. § 12- || 2603. The Government only briefly mention that Plaintiffs failed to file the preliminary 11 |} expert opinion affidavit under A.R.S. § 12-2603 in a footnote. Thus, the Court finds that 12 || an argument for dismissal under this provision was not properly raised. IV. CONCLUSION 14 The Government’s motion is granted in part and denied in part. The motion is 15} granted for Plaintiffs’ negligence claim based on the care the Decedent received on October || 29, 2013 and November 3, 2013. The motion is denied as it relates to Plaintiffs’ negligence || claim based on the care the Decedent received from September 14 through 20, 2013. 18 Accordingly, 19 IT IS ORDERED that the Government’s Second Motion to Dismiss is granted in 20 || part and denied in part. (Doc. 29.) 21 Dated this 12th day of July, 2021. 22 23 a . ~P 24 SO 25 Gnvted States District ude. 26 27 28 -6-