Edrosa v. Chau

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 BERNARDO EDROSA, Case No.: 19cv88-CAB-MDD

12 Plaintiff,

ORDER GRANTING MOTION TO

13 v. DISMISS FIRST AMENDED

COMPLAINT [Doc. No. 51]

14 DR., JOHN K. CHAU,

15 Defendant.

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17 Pending before the Court is Defendants’ motion to dismiss Plaintiff’s First

18 Amended Complaint. [Doc. No. 51.] For the reasons set forth below, the motion is

19 GRANTED.

20 PROCEDURAL BACKGROUND

21 On January 12, 2019, Plaintiff filed a complaint under the Civil Rights Act 42

22 U.S.C. §1983 against Defendants J. Chau, California Department of Corrections and

23 Rehabilitation, erroneously sued as Richard J. Donovan Correctional Facility, California

24 Correctional Health Care Services, G. Casian, P. Jayasundara, and F. Sedighi. [Doc. No.

25 1.] On April 29, 2019, Defendants filed a motion to dismiss the original complaint.

26 [Doc. No. 11.] On July 2, 2019, Plaintiff filed a motion for leave to file an amended

27 complaint. On July 5, 2019, the Court granted Plaintiff’s motion for leave to file an

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1 amended complaint [Doc. No. 18], and the motion to dismiss the original complaint

2 became moot.

3 On January 13, 2020, Plaintiff filed the First Amended Complaint (“FAC”) [Doc.

4 No. 30.] On May 29, 2020, Defendants filed a motion to dismiss the FAC. [Doc. No.

5 51.] On July 6, 2020, Plaintiff filed an opposition. [Doc. No. 53.] On July 14, 2020,

6 Defendants filed a reply to the opposition. [Doc. No. 54.]

7 ALLEGATIONS OF FAC

8 I. TREATMENT IN 2008 AT WASCO STATE PRISON

9 Plaintiff was diagnosed with hepatitis C on May 7, 2008. (Doc. No. 30, FAC, at

10 17, ¶ 23.) CDCR has set forth certain criteria that medical staff must follow with regard

11 to the treatment of hepatitis C. (Id. at 17-18, ¶¶ 25, 26.)1 Therefore, even though Plaintiff

12 wanted treatment for his hepatitis C, it was not permitted under the criteria in place. (Id.

13 at 17, 28, ¶¶ 25, 64.) Furthermore, “this criteria prohibits employed doctors from ordering

14 hep C treatment even if that is what they want to do,” because inmates must receive “pre-

15 approval” for treatment by an “oversight committee prior to beginning treatment.” (Id.)

16 Plaintiff’s condition was monitored with blood work at Wasco State Prison. (Id. at 17, ¶

17 25.)

18 II. TREATMENT FROM 2009 TO 2013 AT KERN VALLEY STATE PRISON

19 In 2009, Plaintiff again requested treatment for his hepatitis C. (FAC at ¶¶ 17- 18,

20 26.) He also wanted an MRI, cat scan, ultra sound, and a liver biopsy because he had

21 abnormal blood work. (Id.) These requests were denied.

22 In 2011, Plaintiff had a liver biopsy, and was diagnosed with stage 1 fibrosis. (FAC

23 at 18, ¶ 28.) At that time, Plaintiff’s “blood levels were off ALT 86.0 and 84.0 (normal

24 30-65), Bilirubin 1.75 and 1.99 (normal 0.2 – 1.5), Alpha Fetoprotein tumor marker 8.7

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27 1 Defendants’ Request for Judicial Notice (“RJN”) [Doc. No. 51 at 11, nn. 2, 3] is GRANTED pursuant

to Fed.R.Evid. 201. It is the CCHCS, not the CDCR, that promulgates the criteria for treatment of

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1 (normal 43).” (FAC at 19, ¶ 31.) Plaintiff continued to fail to meet the treatment criteria,

2 and did not qualify for further testing. (Id.)

3 III. TREATMENT FROM 2013 TO CURRENT AT DONOVAN

4 At Donovan, Plaintiff was referred to Defendant Jayasundare, a nurse practitioner

5 specializing in hepatitis C, and treated with him from 2014 to 2018. (FAC at 19, 23, ¶¶

6 33, 49.) Plaintiff complained about his symptoms at each visit, and told Jayasundara that

7 “the doctors refused to treat plaintiff for his Hep C unless it was recommended by

8 Jayasundara.” (Id.) Jayasundara told Plaintiff there were very strict criteria for the

9 treatment of hepatitis C put in place by an oversight committee. (Id. at 24, ¶ 51.)

10 Jayasundara said that the decision to treat inmates with hepatitis C was not done on an

11 individual basis, but based on a number of criteria that an inmate had to meet to even be

12 considered for treatment. (Id.) He also told Plaintiff that inmates who used drugs, or were

13 expected to use drugs, including alcohol, could be denied treatment. (Id. at 24, ¶ 52.)

14 Plaintiff continued to request treatment. On January 16, 2014, Plaintiff told

15 Defendant Dr. Chau that he would like treatment for his hepatitis C, and identified

16 tiredness, uncontrollable itching, and stomach pains “over or near his liver” as symptoms.

17 (Id. at 19-20, ¶ 34.) Dr. Chau denied Plaintiff’s request, stating he did not meet the

18 criteria for treatment. (Id.)

19 On August 20, 2015 and April 11, 2016, Plaintiff saw Defendant Dr. Casian. At

20 that time, Plaintiff had a viral load number of over 12,000,000. (FAC at 21, ¶ 42.)

21 Plaintiff asked Dr. Casian for treatment, including a new liver biopsy since the last results

22 were from 2011, and he “feared and felt” his liver condition was “much worse.” (Id.) Dr.

23 Casian stated she could not order treatment, and the referral would need to come from the

24 hepatitis C specialist. (Id.) Dr. Casian allegedly told Plaintiff he should change his ways

25 because it was his “low life drug use that was going to kill him and he should have

26 learned his lesson by now.” (FAC at 22, ¶ 45.)

27 Defendant Dr. Sedighi began treating Plaintiff in 2017, and refused to order any

28 treatment until an ultrasound was ordered on November 20, 2017. (Id. at 25- 26, ¶ 58.)

1 After that ultrasound, Plaintiff began receiving treatment for hepatitis C, but he already

2 had cirrhosis of the liver. (Id. at 26-27, ¶ 60.)

3 Plaintiff alleges CDCR’s practice of having an oversight committee determine

4 which inmates with hepatitis C can be referred for treatment discriminates against

5 inmates with the disease, and drug users. (FAC. At 28, ¶ 64.) He argues it therefore

6 violates the ADA and RA. (Id., at 28, ¶ 65.)

7 Plaintiff believes he should have been treated in accordance with the

8 recommendations found in the book “Hepatitis & Liver Disease, authored by Dr. Melissa

9 Palmer, an internationally renowned hepatolist,” and that if Defendants had followed Dr.

10 Palmer’s recommendations, he would not have developed cirrhosis. (FAC at 18019, ¶

11 29.) Dr. Palmer’s recommendations include: (1) treating hepatitis C with interferon “to

12 stop or slow the progression of the disease before any liver related complications

13 develop.” (Id.); and (2) performing liver biopsies more frequently because “a liver biopsy

14 that is 3 to 5 years old is worthless.” (Id. at 22, ¶ 47.)

15 LEGAL STANDARD

16 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to

17 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A

18 court may dismiss “based on the lack of cognizable legal theory or the absence of

19 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police

20 Dep’t, 901 F.2d 696, 699 (9th Cir.1990).

21 Although a complaint need contain only “a short and plain statement of the claim

22 showing that the pleader is entitled to relief,” (Fed.R.Civ.P. 8(a)(2)), in order to survive a

23 motion to dismiss this short and plain statement “must contain sufficient factual matter …

24 to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,

25 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

26 complaint must include something more than “an unadorned, the-defendant-unlawfully-

27 harmed-me accusation” or “ ‘labels and conclusions’ or ‘a formulaic recitation of the

28 elements of a cause of action.’ ” Id. (quoting Twombly, 550 U.S. at 555). Determining

1 whether a complaint will survive a motion to dismiss for failure to state a claim is a

2 “context-specific task that requires the reviewing court to draw on its judicial experience

3 and common sense.” Id. at 679. Ultimately, the inquiry focuses on the interplay between

4 the factual allegations of the complaint and the dispositive issues of law in the action. See

5 Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

6 In making this context-specific evaluation, this court must construe the complaint

7 in the light most favorable to the plaintiff and accept as true the factual allegations of the

8 complaint. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “

9 ‘a legal conclusion couched as a factual allegation,’ ” Papasan v. Allain, 478 U.S. 265,

10 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to “allegations that contradict

11 matters properly subject to judicial notice” or to material attached to or incorporated by

12 reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89

13 (9th Cir.2001).

14 Finally, leave to amend may be denied if the court determines that “allegation[s] of

15 other facts consistent with the challenged pleading could not possibly cure the

16 deficiency.” Schreiber Distributing Co.v. Serv-Well Furniture Co., Inc., 806 F.2d 1393,

17 1401(9th Cir. 1986).

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19 DISCUSSION

20 A. Eighth Amendment Deliberate Indifference Claim.

21 To maintain an Eighth Amendment claim based on prison medical treatment under

22 42 U.S.C. § 1983, an inmate must show “deliberate indifference to serious medical needs.”

23 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S.

24 97, 104 (1976)). “[T]here is a two-pronged test for evaluating a claim for deliberate

25 indifference to a serious medical need:

26 First, the plaintiff must show a serious medical need by demonstrating that

failure to treat a prisoner’s condition could result in further significant injury

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or the unnecessary and wanton infliction of pain. Second, the plaintiff must

28 show the defendant’s response to the need was deliberately indifferent. This

1 second prong ... is satisfied by showing (a) a purposeful act or failure to

respond to a prisoner’s pain or possible medical need and (b) harm caused by

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the indifference.[”]

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Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096).

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A prison official exhibits deliberate indifference when he knows of and disregards a

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substantial risk of serious harm to inmate health. Farmer v. Brennan, 511 U.S. 825, 837

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(1970). The official must both know of “facts from which the inference could be drawn”

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that an excessive risk of harm exists, and he must actually draw that inference. Id. “A

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determination of ‘deliberate indifference’ involves an examination of two elements: the

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seriousness of the prisoner’s medical need and the nature of the defendant’s response to

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that need.” See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on

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other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th

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Cir. 1990). “A defendant must purposefully ignore or fail to respond to a prisoner’s pain

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or possible medical need in order for deliberate indifference to be established.” McGuckin,

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974 F.2d at 1060. Thus, neither an inadvertent failure to provide adequate medical care,

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nor mere negligence or medical malpractice, nor a mere delay in medical care (without

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more), nor a difference of opinion over proper medical treatment, is sufficient to constitute

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an Eighth Amendment violation. See Estelle, 429 U.S. at 105–06; Sanchez v. Vild, 891

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F.2d 240, 242 (9th Cir.1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404,

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407 (9th Cir. 1984).

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Here, Plaintiff acknowledges he received numerous medical consults, exams, tests

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and second opinions in accordance with CCHCS criteria. [FAC at 6-9, 17-18, 24, 28.]

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Importantly, Plaintiff does not allege Defendants failed to follow CCHCS criteria for

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1 treating Hepatitis C. Rather, Plaintiff alleges the CCHCS criteria are defective because

2 they do not comport with the recommendations of Dr. Melissa Palmer, an internationally

3 renowned hepatologist. [FAC at 18, ¶29.] These allegations, however, amount to a

4 difference in medical opinion only, and therefore fail to state a claim for relief. See Estelle,

5 429 U.S. at 105-06. See also Hollis v. Director of Corrections, 560 F.Supp.2d 920, 926-

6 927 (C.D. Cal. 2008)(plaintiff’s allegation that prison medical staff denied him treatment

7 for hepatitis C due to CCHCS criteria did not state a cognizable §1983 claim against either

8 the staff or the entities sued because it amounted to a difference of medical opinion);

9 Woods v. Harrington, No. 1:09-CV-02007 GSA PC, 2010 WL 4624125, at *3 (E.D. Cal.

10 Nov. 4, 2010)(denying treatment for hepatitis C to a prisoner because he does not meet the

11 treatment program requirements does not amount to deliberate indifference). Moreover,

12 because Plaintiff concedes he was treated pursuant to CCHCS criteria, leave to amend

13 would be futile. Accordingly, the motion to dismiss the Eighth Amendment Deliberate

14 Indifference Claim is GRANTED WITHOUT LEAVE TO AMEND.

15 B. Qualified Immunity.

16 “Qualified immunity shields government officials from civil damages liability

17 unless the official violated a statutory or constitutional right that was clearly established

18 at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012).

19 Qualified immunity involves a two-part inquiry: first, “whether the facts that a plaintiff

20 has alleged . . . or shown . . . make out a violation of a constitutional right,” and second,

21 “whether the right at issue was ‘clearly established’ at the time of defendant's alleged

22 misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz,

23 533 U.S. 194 (2001)).

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26 2 Plaintiff specifically alleges that “the use of a ‘LIST’ as to who gets treatment is the cause of the denial

of the treatment that the plaintiff needs to save his life. . . . That the use of a list is the proximate cause of

27 the plaintiff’s injuries.” [FAC at 9, ¶VIII.] In his opposition to the motion to dismiss, Plaintiff confirms

that it is the CCHCS criteria themselves which he believes constitute deliberate indifference. [Doc. No.

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1 Under the second prong of the qualified immunity test, the Court must decide if the

2 alleged violation of Plaintiff’s Eighth Amendment right to be free from cruel and unusual

3 punishment “was clearly established at the time of the officer's alleged misconduct.”

4 C.V. by and through Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016)

5 (citations omitted). If not, the officer receives qualified immunity. To be clearly

6 established, a right must be “sufficiently clear that every ‘reasonable official would [have

7 understood] that what [the official] is doing violates that right.’” Ashcroft v. al-Kidd, 563

8 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “We

9 do not require a case directly on point, but existing precedent must have placed the

10 statutory or constitutional question beyond debate.” Id. Put another way, only the

11 “plainly incompetent” official will not enjoy qualified immunity. Mullenix v. Luna, 136

12 S.Ct. 305, 308 (2015) (per curiam).

13 Here, even if there was an Eighth Amendment violation, given that Defendants

14 followed CCHCS criteria, they are entitled to qualified immunity. See Hines v. Youseff,

15 914 F.3d 1218, 1228 (9th Cir. 2019)(medical personnel who are simply following the

16 criteria developed by others are entitled to qualified immunity and cannot be liable under

17 §1983 for any violation of a prisoner’s Eighth Amendment rights). See also Hollis, 560

18 F.Supp.2d at 926-927; Woods, 2010 WL 4624125, at *3. Therefore, the motion to

19 dismiss the Eighth Amendment claims based upon qualified immunity is GRANTED

20 WITHOUT LEAVE TO AMEND.

21 C. RA and ADA claims.

22 Title II of the ADA provides that “no qualified individual with a disability shall, by

23 reason of such disability, be excluded from participation in or denied the benefits of the

24 services, programs, or activities of a public entity, or be subjected to discrimination by

25 any such entity.” 42 U.S.C. § 12132. Because Title II of the ADA was modeled after §

26 504 of the Rehabilitation Act of 1973, “[t]here is no significant difference in analysis of

27 the rights and obligations created by the ADA and the Rehabilitation Act.” Zukle v.

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1 Regents of the Univ. of Cal., 166 F.3d 1041, 1045, n. 11 (9th Cir.1999); see Coons v.

2 Sec'y of the United States Treas., 383 F.3d 879 (9th Cir.2004).

3 “In order to state a claim under Title II of the ADA, a plaintiff must allege: (1)he

4 ‘is an individual with a disability;’ (2) he is otherwise qualified to participate in or

5 receive the benefit of some public entity's services, programs, or activities; (3) he was

6 either excluded from participation in or denied the benefits of the public entity's services,

7 programs, or activities, or was otherwise discriminated against by the public entity; and

8 (4) ‘such exclusion, denial of benefits, or discrimination was by reason of [his] disability.

9 ‘ “ O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007)(quoting

10 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002) (per curiam)). “Similarly, to state a

11 claim under the Rehabilitation Act, a plaintiff must allege (1) he is an individual with a

12 disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the

13 benefits of the program solely by reason of his disability; and (4) the program receives

14 federal financial assistance.” O'Guinn at 1060 (citing Duvall v. County of Kitsap, 260

15 F.3d 1124, 1135 (9th Cir.2001)).

16 Here, Plaintiff alleges that Defendants violated the ADA and RA when he was

17 denied treatment for hepatitis C because he did not meet the criteria for treatment.

18 However, failure to provide medical care for a disability does not constitute an ADA

19 violation. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010),

20 overruled on other grounds by Horton v. City of Santa Maria, 915 F.3d 592, 599-600

21 (9th Cir. 2019). Moreover, Plaintiff admits that he never qualified for hepatitis C

22 treatment under established criteria. Therefore, he cannot meet the “qualified to

23 participate in or receive the benefit of some public entities services” element of the

24 ADA/RA cause of action. O’Guinn, 502 F.3d at 1060. Therefore, the motion to dismiss

25 the ADA and RA causes of action is GRANTED WITHOUT LEAVE TO AMEND.

26 C. Due Process claim.

27 Plaintiff alleges, without elaboration, that Defendants' alleged deliberate

28 indifference in medical care is violative of the Fourteenth Amendment.

1 “To establish a violation of substantive due process ..., a plaintiff is ordinarily

2 required to prove that a challenged government action was clearly arbitrary and

3 unreasonable, having no substantial relation to the public health, safety, morals, or

4 general welfare. Where a particular amendment provides an explicit textual source of

5 constitutional protection against a particular sort of government behavior, that

6 Amendment, not the more generalized notion of substantive due process, must be the

7 guide for analyzing a plaintiff's claims.” Patel v. Penman, 103 F.3d 868, 874 (9th

8 Cir.1996) (citations, internal quotations, and brackets omitted), cert. denied, 520 U.S.

9 1240, 117 S.Ct. 1845, 137 L.Ed.2d 1048 (1997); County of Sacramento v. Lewis, 523

10 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

11 In this case, the Eighth Amendment “provides [the] explicit textual source of

12 constitutional protection....” Patel, 103 F.3d at 874. Therefore, the Eighth Amendment

13 rather than the Due Process Clause of the Fourteenth Amendment governs Plaintiff's

14 claims of deliberate indifference in medical care. As discussed above, Plaintiff’s claims

15 under the Eighth Amendment fail. Accordingly, Plaintiff’s due process claim also fails.

16 Therefore, the motion to dismiss the due process claim is GRANTED WITHOUT

17 LEAVE TO AMEND.

18 D. CDCR and CCHCS.

19 Plaintiff has named CDCR and CCHCS in his Section 1983 claims regarding his

20 medical care. However, both entities are immune from suit under the Eleventh

21 Amendment.

22 The Supreme Court has held “[s]ection 1983 provides a federal forum to remedy

23 many deprivations of civil liberties, but it does not provide a federal forum for litigants

24 who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh

25 Amendment bars such suits unless the State has waived its immunity.” Will v. Michigan

26 Dept. of State Police, 491 U.S. 58, 66 (1989); see also Alabama v. Pugh, 438 U.S. 781.

27 782 (1978) (per curiam) (holding a lawsuit against the State of Alabama and Alabama

28 Board of Corrections was barred by the Eleventh Amendment). There are only three

1 exceptions to this general rule. Douglas v. Calif. Dept. of Youth Auth., 271 F.3d 812, 817

2 (9th Cir. 2001). First, the State may waive its Eleventh Amendment defense. Id. Second,

3 “Congress may abrogate States' sovereign immunity by acting pursuant to a grant of

4 constitutional authority.” Id. (citations omitted). Third, a suit seeking prospective

5 injunctive relief may proceed. Id. None of the exceptions apply here and, therefore, both

6 entities are immune from suit. In fact, the Ninth Circuit has held that CDCR is an arm of

7 the state and therefore immune from suit under the Eleventh Amendment. Brown v. Cal.

8 Dept. of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (“The district court correctly held that

9 the California Department of Corrections ... [was] entitled to Eleventh Amendment

10 immunity.”); Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999) (“[A]gencies of

11 the state are immune from private damage actions or suits for injunctive relief brought in

12 federal court.” (internal quotation marks omitted).) Therefore, the motion to dismiss

13 CDCR and CCHCS is GRANTED WITHOUT LEAVE TO AMEND.

14 E. Injunctive Relief.

15 Plaintiff has been transferred to another prison3, is receiving interferon treatment

16 for his hepatitis C [FAC at 26, ¶60], and is no longer being treated by any of the

17 Defendant medical staff. As a result, Plaintiff’s claims for injunctive relief are moot.

18 Wiggins v. Rushen, 760 F.2d 1009 (9th Cir.1985)(claims for non-monetary relief brought

19 under 42 U.S.C. §1983 are moot if the prisoner-plaintiff is no longer subject to the

20 alleged illegal conduct); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)(injunctive

21 relief claims dismissed where prisoner is transferred to another prison that is not the

22 subject of the underlying claim). Therefore, the motion to dismiss the injunctive relief is

23 GRANTED WITHOUT LEAVE TO AMEND.

24 / / / / /

25 / / / / /

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3 Defendants’ RJN [Doc. No. 51 at 24, n. 6] is GRANTED pursuant to Fed.R.Evid. 201. Plaintiff is

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1 F. State Law Claims.

2 Given that the federal claims have been dismissed, pursuant to 28 U.S.C.

3 || $1367(c)(3), the Court declines to exercise supplemental jurisdiction over the state law

4 |\claims. Therefore, the motion to dismiss the state law claims is GRANTED WITHOUT

5 || PREJUDICE to being refiled in state court.

6 CONCLUSION

7 For the reasons set forth above, the motion to dismiss the FAC is GRANTED.

8 Clerk shall enter judgment accordingly and CLOSE the case.

9 IT IS SO ORDERED.

10 || Dated: September 11, 2020 €

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Hon. Cathy Ann Bencivengo

12 United States District Judge

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