Espino v. Walgreen Co., 2:15-cv-00423-MCE-AC
| Decision Date | 11 March 2016 |
| Docket Number | No. 2:15-cv-00423-MCE-AC,2:15-cv-00423-MCE-AC |
| Parties | CARLOS ESPINO, Plaintiff, v. WALGREEN CO., et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
On March 2, 2016, the court held a hearing on separate motions to dismiss filed by defendants Walgreen Co. ("Walgreen"), Alvin Webber ("Judge Webber"), and Stockton MRI & Molecular Imaging Medical Center Inc. ("Stockton MRI"), and Judge Webber's motion to declare plaintiff a vexatious litigant. Plaintiff Carlos Espino appeared in pro per, Lori Reihl appeared on behalf of Stockton MRI, Alexandra Sterlin appeared on behalf of Walgreen, and Carol Finuliar appeared on behalf of Judge Webber. Defendant Liberty Mutual Insurance Company's ("Liberty Mutual") motion to dismiss has been taken under submission. On review of the motion, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
PROCEDURAL BACKGROUND
Plaintiff filed his original complaint on February 24, 2015, alleging that Walgreen discriminated against him based on race and disability by refusing to provide him certain medications. ECF No. 1. The court dismissed plaintiff's complaint on May 21, 2015, after hearing on Walgreen's first motion to dismiss. ECF Nos. 8, 14. On June 11, 2015, plaintiff filed a first amended complaint (FAC), which included allegations similar to those in his original complaint. ECF No. 15. On June 25, 2015, Walgreen moved to dismiss plaintiff's FAC. ECF No. 16. On September 21, 2015, following a hearing, the court issued findings recommending that Walgreen's motion be granted without leave to amend. ECF No. 22. On November 12, 2015, the presiding district judge adopted the findings and recommendations in part, dismissing plaintiff's FAC with leave to amend. ECF No. 26.
On November 30, 2015, plaintiff filed his second amended complaint (SAC). The SAC asserts claims under 42 U.S.C. §§ 1981, 1983, 19851 and the Racketeer Influenced and Corrupt Organizations Act (RICO) not only against Walgreen, but also against Judge Webber, Stockton MRI, Liberty Mutual, and Dr. Morris Senegor.2 ECF No. 27.3 The SAC is primarily concerned with an alleged conspiracy between defendants to kill plaintiff, both by administering harmful medical treatment and by withholding needed medications. Id.
On December 21, 2015, Walgreen filed a motion to dismiss the SAC. ECF No. 29. On January 8, 2016, Judge Webber filed both a motion to dismiss and a motion to declare plaintiff a vexatious litigant, along with a request for judicial notice.4 ECF Nos. 31-33. On February 8,2016, both Stockton MRI and Liberty Mutual filed motions to dismiss. ECF Nos. 40, 42. Plaintiff has opposed all pending motions.5 Liberty Mutual's motion to dismiss has been taken under submission without hearing. ECF No. 50.
Plaintiff alleges that in 2010 Dr. Senegor scheduled him for an MRI. ECF No. 27 at 5. When plaintiff arrived at Delta Radiology to receive that MRI, he was told that it would be done with contrast dye. Id. Plaintiff initially refused to have an MRI done with contrast dye but the technician insisted, stating that Liberty Mutual requested the MRI be done with contrast dye. Id. On May 20, 2013, plaintiff underwent a second MRI at Stockton MRI. Id. Plaintiff was again informed that the MRI would be performed with contrast dye, this time because Dr. Senegor requested it. Id. The plaintiff explained to the technician that he had had a "bad reaction" to the contrast dye used during his last MRI. Id. Plaintiff also insisted that Dr. Senegor was aware of his previous reaction to contrast dye. Id. When the technician stated that Dr. Senegor had ordered contrast dye to be used despite his previous reaction, plaintiff agreed to proceed. Id.
During the procedure however, plaintiff began to sweat, vomited, coughed, and could hardly breathe. Id. at 6. These symptoms persisted for approximately twenty minutes. Id. The technician told plaintiff that he would document the reaction. Id. A couple of weeks after his MRI, plaintiff began breaking out with painful lesions all over his body. Id. Plaintiff then learned that he has nephrogenic systemic fibrosis, "a deadly disease that attacks the joints, heart, brain, lungs, and kidneys." Id. People diagnosed with this condition typically "die within 6 years after exposure." Id. Plaintiff contends that the only reason Dr. Senegor ordered his MRIs to be done with contrast die was because Liberty Mutual had been unsuccessful in its previous attempts to kill him. Id.
//// Plaintiff also alleges that employees at numerous Walgreen locations conspired with Liberty Mutual to withhold certain medications on March 1, 2013. Id. at 4. Plaintiff alleges that Walgreen and Liberty Mutual entered into this conspiracy in order to harm him. Id.
In 2013, plaintiff appeared before Judge Webber to litigate a worker's compensation claim. Id. at 7. At some point during the litigation plaintiff attempted to submit evidence of wrongdoing by Dr. Senegor, along with other medical evidence. Id. Judge Webber, however, "did not allow plaintiff to submit any type of evidence." Id. In addition, one of plaintiff's witnesses attempted to submit evidence when she was "physically attacked by Victoria Katchis[,] an attorney for Liberty Mutual Ins." Id. Plaintiff and his witness notified Judge Webber as well as a security guard, but nothing was ever done. Id.
Plaintiff also alleges that on September 15, 2015, he submitted evidence to Judge Webber that Dr. Senegor was lying under oath. Id. Plaintiff alleges that Judge Webber tampered with that evidence in an attempt to engage in a "cover up" for Dr. Senegor and Liberty Mutual. Id.
I. Failure to State a Claim
"A motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim." Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (internal quotation marks omitted), cert. denied, 132 S. Ct. 1762 (2012). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In order to survive dismissal for failure to state a claim, 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of facts that "merely creates a suspicion" that the pleader might have a legally cognizable right of action. Id. (). Rather, the complaint "must contain sufficient factual matter, accepted as true, to'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56), construe those allegations in the light most favorable to the plaintiff, Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (citing Twombly), and resolve all doubts in the plaintiff's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010) (citing Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)). The court need not accept as true, legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
For the reasons explained below, the motions to dismiss should be granted on two independent grounds. First, those claims presented for the first time in the Second Amended Complaint (SAC) are outside the scope of the previously-granted leave to amend. Second, plaintiff has failed to state a claim against any of the defendants under any of the cited statutes.
The court will first recommend that plaintiff's claims against Liberty Mutual, Stockton MRI, Dr. Senegor and Judge Webber, as well as his RICO, § 1983 and § 1985 claims against Walgreen, be dismissed because the previously-granted leave to amend did permit plaintiff to include additional defendants or claims. District courts in this circuit generally allow plaintiffs to add new claims and/or parties to an amended complaint where a prior order of dismissal granted leave to amend without limitation. See, e.g., Katz v. Cal-W. Reconveyance Corp., No. 09-cv-04866-LHK, 2010 U.S. Dist. LEXIS 98940, at *14 n.1 (N.D. Cal. Sept. 21, 2010) (D.J. Koh). On the other hand, where a prior court order granted limited leave to amend, district courts in this circuit generally strike or dismiss new claims or parties contained in an amended complaint when the plaintiff did not seek leave to amend. See, e.g., Benton v. Baker Hughes, No. 12-cv-07735MMM MRWX, 2013 WL 3353636, at *3-5 (C.D. Cal. June 30, 2013) (D.J. Morrow) affd sub nom. Benton v. Hughes, 623 F. App'x 888 (9th Cir. 2015); Crane v. Yarborough, No. CV 05-8534-DSF (JC), 2012 U.S. Dist. LEXIS 43538, at *41 n.14 (C.D. Cal. Feb. 6, 2012) (M.J. Chooljian). Thus, whether a district court will accept new claims and/or parties in an amended complaint after a motion to dismiss depends on whether the plaintiff was granted leave to amend with or without limitation. Urista v. Bank of America, N.A., No. C11-03097-HRL, 2012 U.S. Dist. LEXIS 152, at *16-17 (N.D. Cal. Jan. 3,...
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