(PC) Tolbert v. Michael ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD SHELBY TOLBERT, No. 1:19-cv-00278-NONE-BAM (PC) 12 Plaintiff, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS REGARDING 13 v. DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM 14 MICHAELS, et al., (Doc. No. 23) 15 Defendants. 16 17 Plaintiff Edward Shelby Tolbert is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 22, 2020, the assigned magistrate judge screened plaintiff’s third amended 21 complaint and issued findings and recommendations recommending that this action be dismissed 22 for failure to state a claim upon which relief may be granted. (Doc. No. 23.) Those findings and 23 recommendations were served on plaintiff and contained notice that any objections thereto were 24 to be filed within fourteen (14) days after service. (Id. at 8.) Plaintiff timely filed objections on 25 July 13, 2020. (Doc. No. 24.) 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 27 de novo review of the case. The court has carefully reviewed the entire file, including plaintiff’s 28 objections. While the undersigned agrees with the findings and recommendations that plaintiff’s 1 third amended complaint fails to state a deliberate indifference claim against defendant Manasrah, 2 the court believes it is also appropriate to allow plaintiff’s deliberate indifference claim against 3 defendant Michael to proceed past screening in light of the allegations set forth in plaintiff’s 4 complaint in support of that claim. 5 Defendant Michael 6 Plaintiff alleges that defendant Michael, a medical doctor and hernia surgeon, placed a 7 defective hernia patch in plaintiff without adequate attachment. (Doc. No. 21 at 6.) Plaintiff 8 further alleges that defendant Michael knew that the mesh had been banned. (Id.) In his sworn 9 declaration, plaintiff contends that “the specific mesh used on [him] had been banned since 10 2009—Bard Ventralex hernia patch.” (Id. at 11.) Plaintiff avers that he learned that the Bard 11 Ventralex hernia patch had been recalled since 2009 through a family member and that national 12 television broadcasted a few law firms accepting clients for recalled hernia meshes. (Id. at 10– 13 11.) 14 Defendant Michael performed surgery on plaintiff’s hernia on April 22, 2016—roughly 15 seven years after plaintiff contends that the specific mesh had been banned. (See id. at 3, 10–11.) 16 Approximately five months after plaintiff’s surgery, plaintiff’s hernia reappeared and the bulge 17 had grown to larger than before, accompanied by “a lot of pain.” (Id. at 9.) Plaintiff’s pain 18 continued for approximately another two years, with the hernia bulge growing larger and had 19 potentially migrated. (Id. at 10.) 20 Accepting plaintiff’s allegations as true, the court declines to adopt the pending findings 21 and recommendations with respect to plaintiff’s deliberate indifference claim against defendant 22 Michael. The pending findings and recommendations state that “use of a ‘banned’ hernia mesh is 23 speculative.” (Doc. No. 23 at 6.) However, accepting plaintiff’s allegations as true, as this court 24 must on a screening order, the undersigned finds that plaintiff’s factual allegations plausibly state 25 a claim for deliberate indifference. See Jones v. Jaffe, No. 2:11:-cv-2049-LKK-DAD, at 3–4 26 (E.D. Cal. July 26, 2013) (Doc. No. 56) (holding plaintiff stated cognizable claim for deliberate 27 indifference, reasoning in part that plaintiff subsequently learned his surgery was unnecessary and 28 defibrillator had been recalled as defective before defendant implanted it), adopted by No. 2:11:- 1 cv-2049-LKK-DAD (E.D. Cal. Aug. 26, 2013) (Doc. No. 59). Therefore, accepting plaintiff’s 2 allegations as true, the court will allow plaintiff’s deliberate indifference claim against defendant 3 Michael to proceed. 4 Defendant Manasrah 5 Plaintiff alleges that defendant Manasrah, a nurse practitioner, delayed providing 6 necessary medical treatment for plaintiff’s hernia that lasted for over two years. (Doc. No. 21 at 7 10.) The assigned magistrate judge determined that plaintiff failed to plead any facts showing 8 that defendant Manasrah was deliberately indifferent to plaintiff’s medical condition. (Doc. No. 9 23 at 7.) The complaint alleges that various medical providers repeatedly over the course of two 10 years recommended that plaintiff see a specialist about the issues with his hernia, but that 11 specialist appointment never took place. (Doc. No. 21 at 3–6.) Nonetheless, as to defendant 12 Manasrah, as the pending findings and recommendations noted, the complaint acknowledges that 13 defendant Manasrah examined the hernia, issued medication to soften stool, provided an 14 abdominal support belt, and issued fiber pills for the hernia. (Doc. No. 23 at 7.) In addition, 15 defendant Manasrah again recommended that plaintiff see a specialist. (Doc. No. 21 at 3–4, 9– 16 10.) The assigned magistrate judge indicated that plaintiff has not alleged that defendant 17 Manasrah had the requisite authority to actually make the arrangements for plaintiff to consult 18 with a specialist. (Id.); see also McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992) 19 (affirming summary judgment for defendants where evidence showed that defendants lacked 20 power to schedule surgery on particular date), overruled on other grounds in WMX Techs., Inc. v. 21 Miller, 104 F.3d 1133 (9th Cir. 1997). The undersigned agrees with the pending findings and 22 recommendations that plaintiff has failed to show that defendant Manasrah’s conduct was 23 “medically unacceptable under the circumstances” or was in “conscious disregard of an excessive 24 risk to plaintiff’s health[.]” (Id.) (internal citation omitted). 25 Plaintiff objects to the pending findings and recommendations on the grounds that 26 defendant Manasrah had the authority to arrange for plaintiff to be seen by a specialist because he 27 was the nurse practitioner who recommended that plaintiff see a specialist within ninety days. 28 (Doc. No. 24 at 5.) While plaintiff alleges that defendant Manasrah issued his ninety-day 1 || recommendations, this allegation that defendant Manasrah actually had any authority to schedule 2 | the specialist appointments is speculative and thus insufficient. See McGuckin, 974 F.2d at 1062. 3 | While the undersigned is sympathetic to plaintiff's medical situation and delay of approximately 4 | two years to see a specialist, the court agrees with the pending findings and recommendations that 5 | plaintiff has not stated a cognizable claim for deliberate indifference against defendant Manasrah. 6 | Though defendant Manasrah and other nonparty nurse practitioners repeatedly recommended that 7 | plaintiff see a specialist within ninety days, only to have those ninety-day recommendations 8 || expire over the course of two years, the court agrees with the pending findings and 9 || recommendations that defendant Manasrah provided plaintiff with medical care, ranging from re- 10 | issuing his medications and recommendations to see a specialist within ninety days. (Doc. No. 21 11 9-10.) Therefore, on the facts presently alleged, plaintiff has failed to state a cognizable claim 12 | for deliberate indifference against defendant Manasrah. 13 Accordingly, 14 1. The findings and recommendations issued on June 22, 2020 (Doc. No. 23) are adopted in 15 part; 16 2. The court finds that plaintiff has pled a cognizable deliberate indifference claim against 17 defendant Michael; 18 3. This action with respect to defendant Manasrah is dismissed, without prejudice, due to 19 plaintiff's failure to state a claim; and 20 4. This case is referred back to the assigned magistrate judge for further proceedings. 21 | IT IS SOORDERED. me □ Dated: _ October 23, 2020 a 4 A 5 anys 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28