Gray v. Romero, 1:13-cv-01473-DAD-GSA-PC
| Decision Date | 18 January 2017 |
| Docket Number | 1:13-cv-01473-DAD-GSA-PC |
| Court | U.S. District Court — Eastern District of California |
| Parties | DANA GRAY, Plaintiff, v. ROMERO, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT:
(1) DEFENDANT REBEL'S RULE 12(b)(6) MOTION TO DISMISS BE GRANTED, WITH LEAVE TO AMEND;
Dana Gray ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff's Fourth Amended Complaint filed on September 21, 2015, against defendants Dr. V. Romero, Dr. A. Comelli, FNP N. Loadholt, Dr. C. Rebel, John Ziomek, DPM, and Dr. V. Mundunuri, on Plaintiff's medical claims under the Eighth Amendment.1 (ECF No. 45.)
On April 29, 2016, Defendant Rebel filed a Rule 12(b)(6) motion to dismiss this action as barred by the applicable statute of limitations. (ECF Nos. 57.) On June 30, 2016, Plaintiff filed an opposition to the motion. (ECF No. 93.) On July 7, 2016, Defendant Rebel filed a reply to the opposition. (ECF No. 98.)
On August 31, 2016, Defendants Mundunuri and Ziomek filed a motion for judgment on the pleadings. (ECF No. 122.) On December 19, 2016, Plaintiff filed an opposition to the motion. (ECF No. 155.)
Defendant Rebel's motion to dismiss and Defendants Mundunuri and Ziomek's motion for judgment on the pleadings are now before the Court. Local Rule 230(l).
Plaintiff is a female state prisoner, currently incarcerated at the Central California Women's Facility ("CCWF") in Chowchilla, California, where the events at issue occurred.
Plaintiff has an extensive medical history of lower back pain, bilateral foot pain, and pain in both heels. Upon incarceration at CCWF in January 1998, an orthopedic problem was noted on Plaintiff's Activity Chrono. From 1998 through 2006, Plaintiff was seen by numerous PCP's (Primary Care Physicians) and specialists for her complaints of chronic lower back pain and a leg length discrepancy (LLD). She was also seen for renewal of a right heel lift andvarious accommodations. The specialists documented Plaintiff's LLD and the beginning of lumber spine scoliosis, and suggested preventative care, pain management, and physical therapy.
On October 19, 2006, Plaintiff was seen by Defendant Dr. C. Rebel, an Orthopedic Specialist Consultant at CCWF, for a consultation. Plaintiff complained of chronic pain problems, lower back pain, LLD, and lumbar scoliosis. Plaintiff was in substantial pain, but Defendant Rebel failed to conduct appropriate tests and did not review prior tests. Plaintiff told Defendant Rebel about her medical problems, but Defendant Rebel did not recommend a heel lift because he did not find a LLD. Plaintiff alleges that Defendant Rebel persisted in a course of treatment that was ineffective despite knowing of Plaintiff's diagnoses and medical concerns.
Defendant Dr. John Ziomek was a podiatrist at CCWF. On June 10, 2008, Defendant Ziomek examined and evaluated Plaintiff for a "no state shoes"3 chrono by holding a pencil on Plaintiff's head against a wall, and holding a piece of paper behind Plaintiff's head while Plaintiff elevated one leg and then the other. (ECF No. 45 at ¶¶135, 137.) As Plaintiff raised each leg, Defendant Ziomek marked the paper behind her head. Defendant Ziomek noted, "Patient's leg was not noted to have any LLD at all." (Id. at ¶137.) This measurement not only contradicted the ones done by both of Plaintiff's initial specialists, but Defendant Ziomek's own prescription for a heel lift in 2004 when he issued Plaintiff a heel lift chrono. No x-rays were ordered by Defendant Ziomek to positively confirm or deny Plaintiff's LLD of 12 years. Defendant Ziomek did not review x-rays from 2004 nor appropriately respond to what Plaintiff told him about her heel lift and LLD history. Plaintiff alleges that Defendant Ziomek's failure to refer her to a spine specialist delayed adequate medical treatment which caused her pain and future injury.
On March 15, 2011, Plaintiff was given an MRI exam that revealed "severe lumbar scoliosis and DDD from L2 to L5." (ECF No. 45 at ¶75.) On April 19, 2011, Plaintiff's neurosurgeon Dr. Morris Senegor examined Plaintiff, noting that she was in obvious pain and that she had no conservative pain management. Dr. Senegor issued mobility restrictions on a permanent basis, pain medication Neurontin, and a pain medication regime to possibly include narcotics. He told Plaintiff her scoliosis was not new and had developed over a long period of time.
Defendant Dr. V. Mundunuri was Plaintiff's PCP from 2011 to 2015. Defendant Mundunuri adequately maintained Plaintiff's lumbar spine care until 2015, when she (Mundunuri) refused to fill out required paperwork with the information needed by the Chief Physician & Surgeon to approve Plaintiff's pain medications. Defendant Mundunuri left Plaintiff in unrelieved pain for 41 days. Plaintiff was forced to file Health Care appeals against Defendant Mundunuri. When Plaintiff's condition worsened, Plaintiff sought a return to the neurosurgeon for evaluation for surgery. Defendant Mundunuri accused Plaintiff of "changing her mind constantly" about the decision to have lumbar spinal fusion, when in fact Plaintiff was only following the conservative management as recommended by the neurosurgeon because the surgery was a large operation with risks involved. (ECF No. 45 at ¶24.) Defendant Mundunuri continued to either refuse Plaintiff care or give inadequate care. On August 10, 2015, Defendant Mundunuri gave Plaintiff an inappropriate unclothed rectal exam, instructing Plaintiff to "lean over her desk and drop her pants." (Id. at ¶196.) Plaintiff asked for a female nurse to attend the exam instead of the usual male LVN, but her request was denied. The exam caused Plaintiff intense lower back strain and spasms, and emotional distress and depression because it brought back memories of prior abuse against her.
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In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). However, in order to survive dismissal for failure to state a claim under 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." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. 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 misconductalleged." Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 679 (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. at 680 (quoting Twombly, 550 U.S. at 557).
In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see id. at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Pursuant to Rule 12(c...
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