Mendez v. United States
| Decision Date | 09 April 2018 |
| Docket Number | 1:17-cv-00555-LJO-MJS (PC) |
| Parties | FELIPE MENDEZ, JR., Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER FINDING COGNIZABLE EIGHTH AMENDMENT CLAIMS AGAINST DEFENDANTS GHOTRA, AWAD, RIVERA, MENDOZA, LAKE, LOZANO, MARLOW, CISNEROS, AMOS, QUINTERO, AND GRAMM
FINDINGS AND RECOMMENDATIONS TO DISMISS PLAINTIFF'S NON-COGNIZABLE CLAIMS AGAINST DEFENDANTS LOZANO, LAKE, MENDOZA, RIVERA, AWAD, GHOTRA, AND UNITED STATES OF AMERICA
Plaintiff is a prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA").
On July 11, 2017, the Court screened Plaintiff's first amended complaint and found it stated cognizable Eighth Amendment claims against Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, and Gramm. (ECF No. 11.) Plaintiff was directed to file either a second amended complaint or a notice of willingness to proceed on his cognizable claims only. After first seeking an extension of time in which to file his second amended complaint, on September 13, 2017 Plaintiff filed a notice of willingness to proceed on his cognizable claims only. (ECF No. 16.)
On September 25, 2017, Plaintiff filed a request to withdraw his notice of willingness to proceed (ECF No. 17) and a request for a sixty day extension of time to file a second amended complaint (ECF No. 18.) On September 26, 2017, the Court granted Plaintiff's request to withdraw his notice of willingness to proceed, as well as a sixty-day extension in which to file his second amended complaint. (ECF No. 19.)
On November 27, 2017, Plaintiff filed his second amended complaint. (ECF No. 21.) That complaint is now before the Court for screening. For the reasons outlined below, the Court finds the following cognizable claims for relief:
(1) Eighth Amendment deliberate indifference claims against Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Quintero, and Gramm;
(2) First Amendment retaliation claims against Defendants Quintero, Gramm, Amos, Cisneros, and Marlow; and
(3) FTCA medical malpractice and negligence claims against the United States of America.
For the reasons explained below, the Court finds that Plaintiff fails to state sufficient facts to support the following claims:
(1) First and Eighth Amendment claims against Defendant United States of America through the actions of its employees, Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Quintero, and Gramm.
(2) First Amendment retaliation claims against Defendants Lozano, Lake, Mendoza, Rivera, Awad, and Ghotra;
(3) First Amendment retaliation conspiracy claims against Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Quintero, and Gramm;
(4) Eighth Amendment deliberate indifference conspiracy claims against
Accordingly, the Court will recommend that these claims be dismissed with prejudice as non-cognizable.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
"Actions under [42 U.S.C.] § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. To state a claim under Bivens, a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. See Van Strum, 940 F.2d at 409.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
Plaintiff presently is incarcerated at the Federal Correctional Institution—Pekin in Pekin, Illinois, but complains of acts that occurred during his incarceration at the Federal Correctional Institution—Mendota ("FCI—Mendota") in Mendota, California.
In his first amended complaint, Plaintiff named the following nineteen Defendants: (1) the United States of America (for FTCA claim only); (2) Dr. Harjeet Ghotra, DDS; (3) Dr. Adel Awad, MD, (4) Dr. Caleb Querol, MD and Clinical Director ("CD"); (5) Angela Ramsey, RN; (6) Noelia Rivera, RN; (7) Mr. Mendoza, RN; (8) C. Castaneda, Dental Assistant; (9) J. Cisneros, Federal Correctional Officer ("FCO"); (10) Pavey, FCO; (11) A. Lozano, FCO; (12) Saenz, FCO; (13) R. Quintero, Correctional Counselor; (14) B. Amos, Unit Manager; (15) D. Perez, DHO; (16) C. Marlow, Lieutenant; (17) D. Gramm, Captain; (18) S. Lake, Assistant Warden; and (19) A. Gill, Warden.
Plaintiff pursued claims for First Amendment retaliation, Eighth Amendment medical indifference, Conspiracy, Fourteenth Amendment due process violations, and tort actions under the FTCA. (ECF No. 10.)
In the initial screening order, the Court recognized cognizable claims for Eighth Amendment deliberate indifference against Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, and Gramm. The Court determined that all other claims were not cognizable as pled. (ECF No. 12.) However, Plaintiff was granted leave to amend.
Plaintiff now pursues claims against only Defendants United States of America, Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Gramm, and Quintero.
Plaintiff presents three causes of action; however, it appears that what he labels as "Claim 2" actually consists of two separate causes of action. The Court will refer to them as numbers (2) and (3) below. The claims are summarized as follows:
(1) Defendant United States of America, by and through the deliberate indifference and direct medical malpractice of its federal employees, violated Plaintiff's Eighth Amendment right [to be] protected under the U.S. Constitution and proximately caused the claimed right violations here." (ECF No. 21 at 3.)
(2) Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Gramm, and Quintero were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment. (Id. at 5.)
(3) Defendants Ghotra, Awad, Rivera, Mendoza, Lake, Lozano, Marlow, Cisneros, Amos, Gramm, and Quintero retaliated against Plaintiff in violation of his First Amendment rights. (Id.)
(4) Defendant United States of America is liable to Plaintiff for negligence and malpractice under the FTCA. (Id. at 29-31.)
Plaintiff's factual allegations in the second amended complaint can be summarized as follows:
On February 14, 2016, Defendant Dr. Ghotra examined Plaintiff for a complaint of tooth pain radiating from the lower left side of his mouth. It was determined that the cause was either tooth #18 or #19. Dr. Ghotra, without thoroughly examining Plaintiff or X-raying the affected area, recommended extraction of tooth #18. She stated that Defendant Dr. Querol would not permit her to incur the expense of an X-ray. Plaintiff expressed concern about extracting tooth #18 without being certain it was the cause of his symptoms. He asked for alternatives. Dr. Ghotra responded that even if the tooth could be fixed she would not fix it, and that only extraction would stop the pain. Plaintiff protested, to which Dr. Ghotra replied, Plaintiff said no and left without treatment.
On February 25, 2014, Plaintiff returned to sick call with the same tooth pain. Plaintiff asked Dr. Ghotra to thoroughly examine him to ensure tooth #18 was the source of his pain. She again refused to X-ray Plaintiff's mouth, stating it would cost too much. Having no other choice, Plaintiff had Defendant proceed to extract tooth #18. It turned out it was not the tooth causing pain.
On February 28, 2014, Plaintiff again returned to sick call with extreme tooth pain and fever. He could not sleep or eat due to the pain. Plaintiff requested antibiotics because he had been running a fever and wanted to prevent infection. He also asked for pain medication. Dr. Ghotra examined Plaintiff's mouth and told him that "the extraction site was healing [within]...
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