(PC)Royal v. Ierokomos ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREDDIE LAMONT ROYAL No. 2:20-CV-0218-DMC-P 12 Plaintiff, 13 v. ORDER 14 ALEXANDER IEROKOMOS, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. 18 § 1983. Before the Court is Plaintiff’s first amended complaint. ECF No. 10. The Court will grant 19 Plaintiff leave to amend the defects discussed below. 20 I. SCREENING REQUIREMENT 21 The Court must screen complaints from prisoners seeking relief against a 22 governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any 23 cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to 24 state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is 25 immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). 26 A complaint must contain a short and plain statement of the claim that a plaintiff is 27 entitled to relief. Fed. R. Civ. P. 8(a)(2). The complaint must provide “enough facts to state a claim 28 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 2 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 3 662, 678 (2009). To survive screening, a plaintiff’s claims must be facially plausible, which 4 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant 5 is liable for the misconduct alleged. Id. at 678–79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 6 (9th Cir. 2009). Plaintiffs must demonstrate that each defendant personally participated in the 7 deprivation of the plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). If the 8 allegations “do not permit the court to infer more than the mere possibility of misconduct,” the 9 complaint does not state a claim. Iqbal, 556 U.S. at 679. The complaint need not identify “a precise 10 legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). 11 The Court must construe a pro se litigant’s complaint liberally. See Haines v. 12 Kerner, 404 U.S. 519, 520 (1972) (per curiam); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 13 2012). However, “‘a liberal interpretation of a civil rights complaint may not supply essential 14 elements of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 15 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 16 The Court may dismiss a pro se litigant’s complaint “if it appears beyond doubt that the plaintiff 17 can prove no set of facts in support of his claim which would entitle him to relief.” Hayes v. Idaho 18 Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 19 II. PLAINTIFF’S ALLEGATIONS 20 Plaintiff is a prisoner incarcerated in Mule Creek State Prison (MCSP). ECF No. 10 21 at 1. Plaintiff brings suit against a solitary defendant, Dr. Alexander Ierokomos. Id. Dr. Ierokomos 22 is a physician at San Joaquin General Hospital (SJGH). See id. at 2. Plaintiff contends that Dr. 23 Ierokomos subjected Plaintiff to pain and suffering constituting cruel and unusual punishment in 24 violation of the Eighth Amendment to the United States Constitution. Id. at 2–3. In pertinent 25 summary, Plaintiff allegedly consented to a surgery to remove his tonsils, uvula, and part of his 26 tongue. Id. at 2. Dr. Ierokomos was allegedly negligent and unprofessional, ultimately bungling the 27 surgery. Id. 28 / / / 1 In order to correct his mistake, Dr. Ierokomos assertedly performed a second surgery 2 that caused significant complications. Id. Plaintiff states that he never consented to that surgery. Id. 3 When Plaintiff asked Dr. Ierokomos why he had performed a second, separate surgery to which 4 Plaintiff had not consented, Dr. Ierokomos allegedly only replied, “You should be lucky I corrected 5 my mistake.” Id. The second operation caused Plaintiff’s throat to swell, and Plaintiff could not eat 6 solid food. Id. Plaintiff lost substantial weight. Id. at 2–3. Plaintiff also suffered severe blood loss, 7 rendering Plaintiff anemic. Id. at 3. Plaintiff had to use a walker thereafter. Id. Plaintiff contends 8 that he suffered severe significant scaring on Plaintiff’s neck. Id. Finally, Plaintiff asserts that he 9 ultimately had to use a painful urinary catheter while on a life support machine. Id. 10 III. DISCUSSION 11 The Court finds that Plaintiff has not stated a viable Eighth Amendment claim 12 against Dr. Ierokomos. First, there is no indication that Dr. Ierokomos is a state actor. Second, 13 Plaintiff does not contend that Dr. Ierokomos was deliberately indifferent. 14 A. Section 1983 Does Not Apply to Private Actors: 15 Generally speaking, private actors do not fall under § 1983’s reach. To state a claim 16 under § 1983, Plaintiff “must allege a violation of his constitutional rights and show that the 17 defendant’s actions were taken under color of state law.” Florer v. Congregation Pidyon Shevuyim, 18 N.A., 639 F.3d 916, 921 (9th Cir. 2011) (quoting Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 19 2001)); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006); see Sampson v. County of Los 20 Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020). The “color of law” or “state actor” requirement is 21 “a jurisdictional requisite for a § 1983 action.” Gritchen, 254 F.3d at 812; see West v. Atkins, 487 22 U.S. 42, 46–48 (1988). The question in determining whether a person is subject to suit under § 1983 23 is the same as the question in Fourteenth Amendment claims, Pasadena Republican Club v. W. 24 Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021). Specifically, is the alleged infringement of federal 25 rights fairly attributable to the government? Id. 26 Determining whether a private party acts under color of state law “is a matter of 27 normative judgment, and the criteria lack rigid simplicity.” Brentwood Acad. v. Tenn. Secondary 28 Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); Rawson v. Recovery Innovations, Inc., 975 F.3d 1 742, 747 (2020). “[N]o one fact can function as a necessary condition across the board for finding 2 state action; nor is any set of circumstances absolutely sufficient, for there may be some 3 countervailing reason against attributing activity to the government.” Brentwood, 532 U.S. at 295– 4 96. Traditionally, to have been acting under color of state law, a defendant must have exercised 5 power possessed on account of state law and made possible because they are cloaked with the 6 authority of state law. West, 487 U.S. at 49; Florer, 639 F.3d at 922. A defendant need not 7 necessarily be a state employee, but they must be “a willful participant in joint action with the State 8 or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting 9 ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 (1980). 10 There are at least four tests that facilitate identification of state action. Namely, “(1) 11 public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental 12 nexus.” Rawson, 975 F.3d at 747 (quoting Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)); 13 see Pasadena Republican Club, 985 F.3d at 1167. Satisfaction of any the tests is enough to find 14 state action, provided no “countervailing” factor defeats a finding of state action. Pasadena 15 Republican Club, 985 F.3d at 1167; Rawson, 975 F.3d at 747. Regardless of the test, the question 16 is simply always whether a defendant has exercised power possessed and made possible because 17 state law. Pasadena Republican Club, 985 F.3d at 1167. 18 The public function test is satisfied only upon a showing that the function relevant 19 to a claim is “both traditionally and exclusively governmental.” Rawson, 975 F.3d at 747 (quoting 20 Kirtley, 326 F.3d at 1093). A plaintiff may satisfy both the nexus and joint action tests by 21 identifying “a sufficiently close nexus between the state and the private actor,” such that the private 22 action may be treated as an action of the State, or where the State is so interwoven with the private 23 action that the State was a joint participant in the action. Id. (quoting Jensen v. Lane Cty., 222 F.3d 24 570, 575 (9th Cir. 2000)). Governmental compulsion or coercion may exist if the State exercised 25 coercive power or provided encouragement—whether explicit or secret—such that a choice must 26 be viewed as one made by the State. Id. (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). 27 Physicians who contract with prisons to provide healthcare to inmates are state 28 actors. See, e.g., West, 487 U.S. at 50–54; Harris v. Mkrtchyan, No. 2:19-cv-1040-JAM-JDP (PC), 1 2021 WL 2651999, at *2 (E.D. Cal. June 28, 2021); George v. Sonoma Cty. Sheriff’s Dep’t, 732 2 F. Supp. 2d 922, 934 (N.D. Cal. 2010). However, private doctors, nurses, and hospitals who have 3 not assumed the State’s obligation to provide medical care to inmates, are not state actors just 4 because they provide one-off medical treatment to an inmate. See, e.g., West, 487 U.S. at 50–54; 5 Felix v. Casey, No. 2:18-cv-3185-KJM-AC-P, 2021 WL 2209828, at *2 (E.D. Cal. June 1, 2021); 6 Probst v. Adams Cty. Sheriff’s Dep’t, No. 1:20-cv-00032-DCN, 2021 WL 1554064, at *3 (D. Idaho 7 Apr. 19, 2021); see also Rawson, 975 F.3d at 748–49. 8 Here, there is no allegation here that Dr. Ierokomos is a contracted physician with 9 MCSP or the California Department of Corrections and Rehabilitation (CDCR) or that he is 10 otherwise employed by the State. Indeed, it appears that Dr. Ierokomos is employed by SJGH. ECF 11 No. 10 at 2. The Court recognizes that SJGH may be a public hospital, but the nature of Dr. 12 Ierokomos’ employment is unclear. Plaintiff does not make even a conclusory allegation that Dr. 13 Ierokomos is a state actor. See generally id. at 1–4. To proceed against Dr. Ierokomos, a non-CDC 14 employee, Plaintiff must plead facts that Dr. Ierokomos’ actions are attributable to the state. See, 15 e.g., Felix, 2021 WL 2209828, at *2; Vasquez v. Moghaddam, No. 2:19-cv-1283 AC, 2021 WL 16 1946487, at *4 (E.D. Cal. May 14, 2021). It is not clear that Dr. Ierokomos, other than the instances 17 in which he treated Plaintiff, has a sufficient relationship to the State or CDCR to be considered a 18 state actor. Without more, it is too indefinite whether Dr. Ierokomos is adequately cloaked in the 19 authority of the State or has assumed the State’s obligation to provide sufficient care to prisoners 20 such that liability under § 1983 may attach. 21 The Court will grant Plaintiff an opportunity to amend his complaint in order to 22 clarify whether Dr. Ierokomos is a state actor subject to liability under § 1983. 23 B. Medical Negligence Does Not Constitute an Eighth Amendment Violation: 24 i. Eighth Amendment Standard: 25 To establish an Eighth Amendment claim based on medical treatment, an inmate 26 must show deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 27 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 28 (9th Cir. 2002). A plaintiff must show (1) an objective “serious medical need” by establishing that 1 “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary 2 and wanton infliction of pain’” and (2) that a defendant’s response to the serious medical need was 3 deliberately indifferent. Jett, 439 F.3d at 1096 (citation omitted); see Colwell v. Bannister, 763 F.3d 4 1060, 1066 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). 5 Deliberate indifference exists if a defendant subjectively “knows of and disregards 6 an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 7 2004) (citation and internal quotation marks omitted); see Colwell, 763 F.3d at 1066. A defendant 8 must have been aware of facts from which they could draw the inference that a substantial risk of 9 harm exists, and they must have also drawn the inference. Farmer v. Brennan, 511 U.S. 825, 837 10 (1994); Toguchi, 391 F.3d at 1057. The question of deliberate indifference focuses on what a 11 defendant’s state of mind actually was. Farmer, 511 U.S. at 834–39. A prison official must have 12 had a “sufficiently culpable state of mind.” Id. at 834. 13 Deliberate indifference can be established by showing “(a) a purposeful act or failure 14 to respond to a prisoner’s pain or medical need and (b) harm caused by the indifference.” Jett, 439 15 F.3d at 1096 (citation omitted); see Colwell, 763 F.3d at 1066; Wilhelm, 680 F.3d at 1122. Knowing 16 provision of subpar medical care and denial or delay of medical care may violate the Eighth 17 Amendment. See Estelle, 429 U.S. at 104–05, 104 n.10; Colwell, 763 F.3d at 1066. But deliberate 18 indifference is a high standard and requires more than an ordinary lack of care. See Colwell, 763 19 F.3d at 1066; Wilhelm, 680 F.3d at 1122; Toguchi, 391 F.3d at 1057, 1060. Negligent medical care 20 alone is not a constitutional violation. See Jett, 439 F.3d at 1096; Frost v. Agnos, 152 F.3d 1124, 21 1130 (9th Cir. 1998); see also Farmer, 511 U.S. 825, 835–37; Estelle, 429 U.S. at 105–106. 22 “Medical malpractice does not become a constitutional violation merely because the victim is a 23 prisoner.” Estelle, 429 U.S. at 106. 24 A difference of opinion between an inmate and prison medical staff about the proper 25 course of medical treatment is not deliberate indifference. See, e.g., Toguchi, 391 F.3d at 1058; 26 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Nor does a dispute between an inmate and 27 prison officials over the necessity or extent of medical treatment establish a constitutional violation. 28 See, e.g., Toguchi, 391 F.3d at 1058; Sanchez, 891 F.2d at 242. To establish that a difference of 1 opinion rose to the level of deliberate indifference, an inmate must show that the course of treatment 2 the doctors chose was “medically unacceptable under the circumstances.” Toguchi, 391 F.3d at 3 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see Colwell, 763 F.3d at 1068. 4 Inmates must also show that the doctor chose a course of treatment in conscious disregard of an 5 excessive risk to the inmate’s health. See Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332. 6 ii. Plaintiff Does Not Allege that Dr. Ierokomos was Deliberately Indifferent: 7 The Court construes Plaintiff’s complaint as sufficiently alleging a serious medical 8 need—namely, the underlying conditions for which he went into surgery and the complication he 9 suffered as a result of surgery. See ECF No. 10 at 3–4. But Plaintiff only contends that Dr. 10 Ierokomos was negligent and unprofessional and that his subpar provision of care caused him cruel 11 and unusual pain. Id. at 3. Be that as it may, those assertions do not demonstrate that Dr. Ierokomos 12 was deliberately indifferent. See id. 13 Whatever Dr. Ierokomos’ professional errors were, as currently alleged they do not 14 constitute deliberate indifference. It is possible that Dr. Ierokomos may have botched Plaintiff’s 15 surgery and violated professional norms in performing a surgery to which Plaintiff did not consent. 16 And it is possible that Dr. Ierokomos’ second surgery caused Plaintiff significant pain and other 17 health complications. But negligence in the provision of medical care does not violate the Eighth 18 Amendment. See Farmer, 511 U.S. 825, 835–37; Estelle, 429 U.S. at 105–106; Jett, 439 F.3d at 19 1096; Frost, 152 F.3d at 1130. Medical malpractice on Dr. Ierokomos’ part does not rise to the level 20 of a constitutional deprivation just because Plaintiff is a prisoner. Estelle, 429 U.S. at 105–106. Nor 21 does any difference of opinion between Plaintiff and Dr. Ierokomos as to the appropriate course of 22 treatment establish a constitutional violation unless Plaintiff can show Dr. Ierokomos’ course of 23 treatment was medical unacceptable under the circumstances and chosen in conscious disregard of 24 an excessive risk to Plaintiff’s health. See, e.g., Toguchi, 391 F.3d at 1058. 25 The Court will grant Plaintiff leave to amend in order to clarify whether he contends 26 that Dr. Ierokomos was deliberately indifferent. 27 28 1 IV. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire action. 4 See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, 5 as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 6 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to amend, all claims 7 alleged in the original complaint which are not alleged in the amended complaint are waived. See 8 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if Plaintiff amends the complaint, 9 the Court cannot refer to the prior pleading in order to make Plaintiff's amended complaint 10 complete. See Local Rule 220. An amended complaint must be complete in itself without reference 11 to any prior pleading. See id. 12 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 13 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis 14 v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each 15 named defendant is involved and must set forth some affirmative link or connection between each 16 defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 17 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Finally, Plaintiff is warned that failure to file an amended complaint within the time 19 provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 1260– 20 61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply with 21 Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). See 22 Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's first amended complaint is dismissed with leave to amend; and 3 2. Plaintiff shall file a second amended complaint within 30 days of the date of 4 | service of this order. 5 6 || Dated: August 4, 2021 Ssvcqo_ 7 DENNIS M. COTA 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28