(PC) Keck v. Batra

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 BILL KECK, Case No. 1:19-cv-00910-AWI-HBK (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS FIRST AMENDED COMPLAINT

13 v. FOR FAILURE TO STATE A CLAIM1

14 S. BATRA, FOURTEEN-DAY OBJECTION PERIOD

15 Defendant. (Doc. No. 14)

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17 Before the Court is Plaintiff Bill Keck’s (“Plaintiff” or “Keck”) First Amended Complaint

18 subject to screening under 28 U.S.C. § 1915. (Doc. No. 14, “FAC”). The undersigned

19 recommends the district court dismiss the FAC because it fails to state a plausible constitutional

20 claim upon which relief can be granted.

21 BACKGROUND

22 A. Procedural Posture

23 Keck, a civil detainee proceeding pro se and in forma pauperis, initiated this matter by

24 filing a civil rights action under 42 U.S.C. § 1983 on July 3, 2019 while detained at Coalinga

25 State Hospital. (Doc. Nos. 1, 5). The former assigned magistrate judge screened Plaintiff’s initial

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27 1 The undersigned submits these factual findings and recommendations to the district court pursuant to 28

U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022).

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1 complaint and found the complaint deficient because it failed to allege sufficient facts to state a

2 constitutional claim. (Doc No. 8 at 1-3). The order directed Plaintiff to file an amended

3 complaint within thirty (30) days. (Id.). After Plaintiff failed to timely file an amended

4 complaint, the court issued an order to show cause why the case should not be dismissed for

5 failure to prosecute or comply with the court order. (Doc. No. 9). When Plaintiff failed to

6 respond, the former magistrate judge issued findings and recommendations to dismiss the action

7 on May 15, 2020. (Doc. No. 10). While the findings and recommendations were pending,

8 Plaintiff moved for an extension of time to file an amended complaint, which he filed on June 25,

9 2020. (Doc. Nos. 11, 14). The case was reassigned to the undersigned, and on October 28, 2021,

10 the undersigned rescinded the May 15, 2020 findings and recommendations due to Plaintiff’s

11 filing his FAC. (Doc. No. 18).

12 B. Summary of FAC

13 Plaintiff’s FAC identifies “S. Batra, M.D.” as the sole Defendant on the caption of the

14 case and as the sole Defendant in the body of the FAC under “Defendants.” (Doc. No. 14 at 1,

15 2).2 Plaintiff identifies the basis for jurisdiction as the “5th and 14th Amendment,” (id. at 3), and

16 elaborates his claims are predicated upon the fact he was “refuse[d] medical treatment and

17 medical A.D.A. items.” (Id. at 4). Plaintiff states the events giving rise to the cause of action

18 began in October 2005 and continued to the filing of the FAC. (Id.). Attached to the FAC are

19 two exhibits. Plaintiff identifies Exhibit 1 as a “test that was done [which] proves that the

20 plaintiff does have a medical problem and should have a walker for his safety.” Plaintiff

21 identifies Exhibit 2 as documents filed with the Department of Consumer Affairs. (Id. at 11, 13-

22 20).

23 Liberally construed, the FAC attempts to set forth a: (1) medical deliberate indifference

24 claim stemming from Dr. Batra’s refusal to issue Plaintiff a walker; and (2) retaliation claims

25 against unspecified staff for not permitting Plaintiff to administer his own finger pricks for sugar

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27 2 On the caption, Plaintiff includes “et. al.” suggesting other Defendants are named in the action. (Id. at 1).

A review of the FAC reveals only a passing reference to an individual with the last name Robles, id. at 9,

28 who Plaintiff identifies as a mental health technician at Coalinga State Hospital.

1 testing or his own shots for diabetes. Regarding the medical claim, Plaintiff states, “for several

2 months” he has been “suffering from pain which radiates down the back of both legs” and has

3 “weakness in both legs which causes instability in the way [he] walks.” (Id. at 8). Because he is

4 having difficulty “navigating the halls” Plaintiff requested Dr. Batra, “on several occasions” to

5 “initiate the process” so he may obtain a walker “to assist [him] in [his] mobility.” (Id.). Doctor

6 Batra “refused on every occasion [to provide a walker], and further ignores [Plaintiff’s] pleas for

7 medical assistance.” (Id.). Plaintiff refers the Court to Exhibit 1 where he claims it was

8 documented he required a walker. (Id).

9 With regard to his claim of retaliation, Plaintiff states after he began requesting a walker,

10 “staff” refused to allow him to do his own finger prick test for his sugar count and stopped

11 allowing him to give himself his own shots for diabetes. (Id. at 9). He also alleges “they” are

12 forcing him to take his meds. (Id.). Plaintiff refers to a medical technician by the last name

13 Robles, and states Robles interfered with his medical exams noting Robles and is not a “ medical

14 doctor only a pysh tect.” (Id.).

15 Plaintiff seeks a litany of relief, including, but not limited to, order(s) directing: (1)

16 Coalinga State Hospital to send him to specialist; (2) officials to permit him administer his own

17 finger pricks and shots; (3) provision of a walker; and (4) Coalinga to pay for costs of medical

18 care and for costs of this lawsuit. (Id. at 10).

19 APPLICABLE LAW

20 A. Screening Requirements

21 Because Plaintiff seeks to proceed in forma pauperis, the Court may dismiss this action

22 “at any time” if the Court determines, inter alia, the action is frivolous or fails to state a claim. 28

23 U.S.C § 1915(e)(2)(B)(i)-(ii). A claim is legally frivolous when it lacks an arguable basis either

24 in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Franklin v. Murphy, 745

25 F.2d 1221, 1227-28 (9th Cir. 1984). Alternatively, claims are frivolous where they are based on

26 an indisputably meritless legal theory or where the factual contentions are clearly baseless.

27 Neitzke, 490 U.S. at 327. And a claim is frivolous “when the facts alleged rise to the level of the

28 irrational or the wholly incredible, whether or not there are judicially noticeable facts available to

1 contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); see also Neitzke v. Williams,

2 490 U.S. 319, 325, 328 (1989) (finding claims may be dismissed as “frivolous” where the

3 allegations are “fanciful” or “describe[e] fantastic or delusional scenarios”).

4 Dismissal for failure to state a claim in this context is governed by the same standard as

5 dismissal under Federal Rule of Civil Procedure 12(b)(6). Barren v. Harrington, 152 F.3d 1193,

6 1194 (9th Cir. 1998). As such, a complaint must contain sufficient factual matter to state a claim

7 to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A complaint

8 is plausible on its face when it contains sufficient facts to support a reasonable inference that the

9 defendant is liable for the misconduct alleged.” Id. At this stage, the Court accepts the facts

10 stated in the complaint as true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976);

11 Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003). The Court does not accept as true

12 allegations that are merely conclusory, unreasonable inferences, or unwarranted deductions.

13 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Nor are legal conclusions

14 considered facts. Iqbal, 556 U.S. at 678. Critical to evaluating a constitutional claim is whether

15 it has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.

16 1989).

17 B. Section 1983

18 Section 1983 allows a private citizen to sue for the deprivation of a right secured by

19 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To

20 state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law

21 caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park

22 v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation

23 requirement by showing either: (1) the defendant’s “personal involvement” in the alleged

24 deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a

25 supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th

26 Cir. 2018).

27 The statute plainly requires that there be an actual connection or link between the actions

28 of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v.

1 Dep’t of Soc. Servs., 436 U.S. 658, 692-693 (1978); Rizzo v. Goode, 423 U.S. 362, 375-76 (1976).

2 The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional

3 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s

4 affirmative acts or omits to perform an act which he is legally required to do that causes the

5 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

6 ANALYSIS

7 For the reasons discussed below, the undersigned finds the FAC objectively fails to state

8 either a medical deliberate indifference claim under the Fourteenth Amendment, or a retaliation

9 claim under the First Amendment, or any other claim, and recommends the district court dismiss

10 the FAC.

11 A. Medical Condition Claims

12 “Persons who are involuntarily committed are entitled to more considerate treatment and

13 conditioned of confinement than criminals whose conditions of confinement are designed to

14 punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982) (citations omitted). The Fourteenth

15 Amendment applies to claims filed by the civilly detained regarding their conditions of

16 confinement. Jonas v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004); Mitchell v. Washington, 818

17 F.3d 436 (9th Cir. 2016). Critically, “an individual detained under civil process – like an

18 individual accused but not convicted of a crime – cannot be subject to conditions that “amount to

19 punishment.” Jones, 393 F.3d at 932 (citing Bell, 441 U.S. at 536).

20 The Ninth Circuit has held that the objective, not subjective, deliberate indifference

21 standard applies when evaluating a pretrial detainee’s medical care claim. See Gordon v. County

22 of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (holding claims for violations of the right to

23 adequate medical care for pretrial detainees are evaluated under the objective standard set forth in

24 Castro3). The elements of a detainee’s medical care claim under the Fourteenth Amendment are:

25 (1) the defendant made an intentional decision with respect to the conditions under which the

26 plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious

27 harm; (3) the defendant did not take reasonable available measures to abate that risk, even though

28 3 Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016).

1 a reasonable official in the circumstances would have appreciated the high degree of risk

2 involved—making the consequences of the defendant’s conduct obvious; and (4) by not taking

3 such measures, the defendant caused plaintiff’s injuries. Id. at 1124-1125.

4 The “mere lack of due care” by a defendant does not deprive an individual of his rights

5 under the Fourteenth Amendment. Castro, 833 F.3d at 1071 (citations omitted). “Thus, the

6 plaintiff must ‘prove more than negligence but less than subjective intent—something akin to

7 reckless disregard.’” Gordon, 888 F.3d at 1125(citations omitted). Hence gross negligence, a

8 difference in medical opinion, malpractice, and misdiagnosis does not establish a constitutional

9 violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Thompson v. Worch, 6 F.

10 App’x 614, 616 (9th Cir. 2001); Anchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); and DiMarzio

11 v. Jacobs, 162 F. App’x 774, *1 (9th Cir. 1989).

12 Plaintiff complains he has fallen down “many time because of [his] hip” and has pain and

13 weakness in his legs that results in his instability when walking. (Doc. No. 14 at 7-8). Plaintiff

14 maintains he needs a walker, but Dr. Batra “refused on every occasion” to provide him one.

15 (Doc. No. 14 at 8). Plaintiff claims Exhibit 1 demonstrates his “medical need” for a walker. (Id.

16 at 8; 13-16). Notably, the FAC contains no allegations that Dr. Batra ever refused to treat and/or

17 examine Plaintiff. Instead, the gravamen of the FAC is that Dr. Batra disagreed with Plaintiff as

18 to whether Plaintiff had a medical need for a walker.

19 At this stage of the proceedings, the Court must accept the Plaintiff’s factual allegations as

20 true and construe them in the light most favorable to the Plaintiff. The Court’s review is limited

21 to the complaint, exhibits attached and materials incorporated into the complaint by reference,

22 and matters of which the court may take judicial notice. Petrie v. Elec. Game Card, Inc., 761

23 F.3d 959, 966 (9th Cir. 2014); see also Fed. R. Civ. P. 10(c). Because the exhibits are attached

24 and incorporated in the FAC, the Court may consider the exhibits when their authenticity is not

25 questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)(noting at 12(b)(6)

26 stage material properly submitted as part of the complaint may be considered without converting

27 the motion to dismiss to a motion for summary judgment).

28 “Exhibit 1” referenced in the FAC comprises four pages: a title page attaching copies of

1 scans of Plaintiff’s neck, spine and left hip taken upon referral from J. George M.D. on March 21,

2 2018. (Doc. No. 14 at 13-16). Plaintiff points to the word “Osteopenia” which appears next to

3 “WHO Classification” on the scan of his hip and writes “this word indicates I have very weak

4 bones and if I fall my bones can easily break which means I qualify for a walker.” 4 (Doc. No. 14

5 at 16). Plaintiff also circles the word “Increased” next to “Fracture Risk” on the scan. (Id.)

6 “Exhibit 2” referenced in the FAC comprises four pages: a cover page, a one-page excerpt from

7 Plaintiff’s medical files containing handwritten notes bearing a stamped signature of “S. Batra

8 D.O. DSH-Coalinga” and a scrawled “B” signature. (Id. at 18). Next to the handwritten notes are

9 the dates “6/17/19” and “6/13/19.” (Id.). The medical notes written by Dr. Batra, although at

10 times undecipherable, address the issue of Plaintiff’s desire for and Dr. Batra’s assessment of

11 whether Plaintiff required a walker and read as follows:

12 [Illegible] Consult. General consent written. Pt seen by specialist

self-referral. Pt specialist recommends a walker. No subject or

13 objective that show any assessment for a walker. Pt Controlled DM.

No Med Recommendations. RTC5 3 months.

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Pt has normal gait. No indication for walker. Controlled DM now

15 was uncontrolled [illegible] non-adherence. Pt now controlled w/o

[illegible]. Not indicated for [illegible] consult. Pt to F/U with PCP.

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17 (Doc. No. 14 at 18).

18 Also included within Exhibit 2 are letters dated June 10, 2020 and February 11, 2020 from

19 the Osteopathic Medical Board of California to Plaintiff regarding his complaint concerning Dr.

20 Batra inquiring, when did Plaintiff “injure [his] pelvis” and when was his “request for treatment

21 denied?” (Doc. No. 14 at 19-20). Dr. Batra is identified as a “licensed Osteopathic Physician and

22 Surgeon.” (Id.). The letters request Plaintiff to complete authorized medical forms and state

23 once the authorization and Plaintiff’s medical files are received, the review process will take

24 months. (Id.).

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4 “Osteopenia is a loss of bone mineral density (BMD) that weakens bones. It’s more common in people

26 older than 50, especially women. Osteopenia has no signs or symptoms, but a painless screening test can

measure bone strength. Certain lifestyle changes can help you preserve bone density and prevent

27 osteoporosis.” https://my.clevelandclinic.org

28 5 The Court construes the acronym “RTC” as Return to Clinic.

1 The undersigned finds that Plaintiff’s claim against Dr. Batra does not rise to a due

2 process violation. Significantly, the Physician Progress Notes from the two date in June of 2019

3 show that Dr, Batra examined Plaintiff and determined Plaintiff has a normal gait and does not

4 need a walker. Thus, despite Plaintiff’s own assessment that he requires a walker, the exhibits

5 containing a physician’s assessment after an examination contradict Plaintiff’s assessment as to

6 whether he requires a walker. While the Court accepts the factual allegations in the FAC as true,

7 it need not accept as true allegations that contradict matters properly subject to judicial notice or

8 by exhibit. See Mullis v. United States Bankr.Ct., 828 F.2d 1385, 1388 (9th Cir.1987); Sprewell

9 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275

10 F.3d 1187 (9th Cir. 2001). The exhibits support a finding that the issue here amounts to only a

11 difference of medical opinion between Plaintiff and Dr. Batra. The FAC does not provide

12 sufficient facts that Defendant Batra acted with reckless disregard in failing to provide him with a

13 walker, that his decision to not provide him with a walker places Plaintiff at a substantial risk of

14 suffering serious harm, or that Plaintiff suffered any injuries due to Doctor Batra’s decision to

15 deny Plaintiff’s request for a walker. Plaintiff points to his hip scan and his diagnosis of

16 Osteopenia as evidence that he requires a walker, but the scan makes no mention of the need for a

17 walker anywhere. Instead, the FAC alleges only that, after examining Plaintiff, Doctor Batra

18 disagreed with Plaintiff’s assessment and instead concluded Plaintiff’s medical condition did not

19 require a walker. Dr. Batra’s notes reference that both objective and subjective testing does not

20 support the need for a walker. Further, Dr. Batra examined Plaintiff and found he had a normal

21 gait. Based on the brevity of the facts alleged and as controverted by the exhibits, the

22 undersigned finds no basis to infer that Dr. Batra’s decision to not prescribe Plaintiff a walker

23 amounted to the level of recklessness necessary to support a finding under the Fourteenth

24 Amendment’s objective deliberate indifference standard. Based on the foregoing, the

25 undersigned recommends the district court dismiss the FAC for failure to state a Fourteenth

26 Amendment medical claim of medical deliberate indifference.

27 B. ADA Claim

28 The FAC makes a passing reference to the “A.D.A.,” but otherwise fails to allege any

1 facts to support a claim under the American with Disabilities Act. Title II of the ADA provides

2 that “no qualified individual with a disability shall, by reason of such disability, be excluded from

3 participation in or be denied the benefits of the services, programs, or activities of a public entity,

4 or be subject to discrimination by such entity.” 42 U.S.C. § 12132. “The term ‘services,

5 programs, or activities’ as used in the ADA is . . . broad, ‘bringing within its scope anything a

6 public entity does.’” Fortyune v. City of Lomita, 766 F.3d 1098, 1101 (9th Cir. 2014) (quoting

7 Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002)).

8 To state a claim under Title II of the ADA, plaintiff must allege that:

9 (1) he “is an individual with a disability;” (2) he “is otherwise

qualified to participate in or receive the benefit of some public

10 entity’s services, programs, or activities;” (3) he “was either

excluded from participation in or denied the benefits of the public

11 entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity;” and (4) “such exclusion,

12 denial of benefits, or discrimination was by reason of [his]

disability.”

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14 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original).

15 The proper defendant in an ADA action is the public entity responsible for the alleged

16 discrimination. U.S. v. Georgia, 546 U.S. 151, 153 (2006).

17 Here, other than containing allegations that Plaintiff requires a walker, the FAC is

18 otherwise devoid of any facts to support that Plaintiff has been excluded from any activities due

19 not having a walker.

20 C. Retaliation Claims

21 The standard for civil detainees and prisoners pursuing First Amendment retaliation

22 claims is the same. Saint-Martin v. Price, Case No. 2:18-cv-00123-DAD-SKO, 2018 WL

23 731507, *3 n. 3 (E.D. Cal. 2018) (citations omitted) (noting neither case law nor the parties

24 argued that the standard for civil detainees was different from that of prisoners pursuing a First

25 Amendment retaliation claim). “Prisoners have a First Amendment right to file grievances

26 against prison officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d

27 1108, 1114 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). To

28 prevail on a retaliation claim under the First Amendment, a plaintiff must show that: (1) he

1 engaged in a protected conduct; (2) a state actor took some adverse action against him; (3) the

2 protected conduct was a “substantial” or “motivating” factor behind the adverse action; (4) the

3 adverse action would chill a person of ordinary firmness from future exercise of First Amendment

4 rights; and (5) the action did not reasonably advance a legitimate correctional goal. See Rhodes v.

5 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

6 Here, the FAC paints a broad picture referring to “medical staff” generally. With

7 references to “medical staff” and “they,” Plaintiff claims he is no longer allowed to give himself

8 his diabetes shots and staff have been “forcing” him to take his medications. While Plaintiff

9 believes this is happening in retaliation because he requested a walker, the FAC fails to allege any

10 casual connection between the acts of any medical staff and his request to Dr. Batra for a walker.

11 Plaintiff identifies only one staff member by name—Robles. But Plaintiff only states Robles

12 “interfered” with Plaintiff’s medical examination.

13 None of the required elements of a retaliation claim are satisfied based on the above facts

14 set forth in the FAC. Requesting a walker in and of itself is not protected activity under the First

15 Amendment. The FAC does not allege that Plaintiff filed any grievances or engaged in any other

16 protected conduct. Moreover, requiring Plaintiff to take his prescribed medications does not

17 sound in retaliation. Nor does the FAC allege that Plaintiff does not need these medications.

18 Thus, the facts Plaintiff alleges in his FAC fall woefully short of alleging a cognizable First

19 Amendment retaliation claim.

20 FINDINGS AND RECOMMENDATIONS

21 Based on the above, the undersigned finds Plaintiff’s FAC does not state a cognizable

22 claim against Defendant Doctor Batra for deliberate indifference to a serious medical condition

23 claim under the Fourteenth Amendment. The FAC otherwise fails to state an ADA claim or a

24 First Amendment retaliation claim against any other defendant. Despite being provided with the

25 relevant pleading and legal standards, Plaintiff was unable to cure the deficiencies and further

26 leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

27 Accordingly, it is RECOMMENDED:

28 1. Plaintiff’s First Amended Complaint against Defendant Batra be dismissed for failure

1 | to state a cognizable claim.

2 2. All other claims and an unnamed defendants identified only as “et al.” be dismissed.

3 NOTICE TO PARTIES

4 These findings and recommendations will be submitted to the United States District Judge

5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

6 | after being served with these findings and recommendations, a party may file written objections

7 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings

8 | and Recommendations.” Parties are advised that failure to file objections within the specified

9 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39

10 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated: _ July 11,2022 Mihaw. fareh Zack

13 HELENA M. BARCH-KUCHTA

4 UNITED STATES MAGISTRATE JUDGE

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