# Opinion

> District Court, C.D. California · February 9, 2018

URL: https://www.frixlaw.com/law-library/cases/11377951

## Case

- **Full name:** Moshe Leichner v. United States of America, et al.
- **Court:** District Court, C.D. California
- **Decided:** February 9, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 MOSHE LEICHNER, Case No. EDCV 13-2317 JFW (SS)

12 Plaintiff,
REPORT AND RECOMMENDATION OF
13 v.
14 UNITED STATES OF AMERICA, et UNITED STATES MAGISTRATE JUDGE
al.,
15
Defendants.
16
17
18 This Report and Recommendation is submitted to the Honorable
19 John F. Walter, United States District Judge, pursuant to 28 U.S.C.
20 § 636 and General Order 05-07 of the United States District Court
21 for the Central District of California.
22
23 I.
24 INTRODUCTION
25
26 On December 10, 2013, Moshe Leichner, a federal prisoner then
27 proceeding pro se, constructively filed a “Verified Complaint [and]
28 Jury Trial Demand for Plaintiff’s Claims of Civil Conspiracy and
1 Civil Rico under FTCA, 42 U.S.C. § 1983, 28 U.S.C. §§ 1332 & 1367,
2 Bivens, and 18 U.S.C. §§ 1961 et seq.”1 (“Complaint,” Dkt. No. 3).
3 The Complaint originally raised seven claims against sixteen
4 Defendants arising from their alleged failure over a five-year
5 period to provide Plaintiff with proper medical care for what
6 doctors ultimately determined was bladder cancer. On August 28,
7 2015, Plaintiff “amended” the Complaint by voluntarily dismissing
8 two claims and nine Defendants. (See Notice of Amendment, Dkt.
9 No. 10). On October 30, 2017, Plaintiff, now represented by pro
10 bono counsel, voluntarily dismissed an additional four Defendants.
11 (See Notice of Dismissal, Dkt. No. 111). Three surviving
12 Defendants and three causes of action remain in the “Amended
13 Complaint.”2
14
15 On December 26, 2017, Defendant Dr. Alexander Sinavsky filed
16 the instant Motion to Dismiss (“Motion” or “MTD”), supported by
17 the declaration of Autumn Norris, an Administrative Legal Assistant
18
1 The “mailbox rule” applies to civil rights cases. See Douglas
19 v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). Pursuant to the
mailbox rule, pro se prisoner legal filings are deemed filed on
20
the date the prisoner delivers the document to prison officials
21 for forwarding to the court clerk. Id. Because the Complaint did
not attach a proof of service, the Court adopts the date in the
22 signature block as the constructive filing date. (See Complaint
at 159). Where possible, the Court will apply the mailbox rule to
23 all of Plaintiff’s legal filings discussed in this Report.

24 2 Following the filing of Plaintiff’s September 24, 2015 “Notice
of Amendment,” (Dkt. No. 10), then-presiding Magistrate Judge Carla
25
M. Woehrle deemed the Complaint to have been “amended.” (Dkt. No.
26 11). Accordingly, the Court will refer to the operative version
of the Complaint, reflecting Plaintiff’s voluntary dismissal of
27 Defendants on both August 28, 2015 and October 30, 2017, as the
“Amended Complaint.” The case was reassigned to the undersigned
28 Magistrate Judge on April 7, 2016. (Dkt. No. 41).
1 at the Federal Bureau of Prisons (“BOP”) (“Norris Decl.”). (Dkt.
2 No. 112). Plaintiff filed an Opposition on January 9, 2018
3 (“Opp.”), including the declaration of counsel Nicholas A. Belair
4 (“Belair Decl.”). (Dkt. No. 116). Dr. Sinavsky filed a Reply on
5 January 16, 2018. (“Reply,” Dkt. No. 117). On February 6, 2018,
6 the Court held a hearing.
7
8 For the reasons stated below, it is recommended that the Court
9 DENY Dr. Sinavsky’s Motion to Dismiss without prejudice to
10 reasserting a statute of limitations and/or qualified immunity
11 defense on summary judgment. It is further recommended that the
12 Court ORDER Dr. Sinavsky to file an Answer to the Amended Complaint
13 within fourteen days of the District Judge’s Order.
14
15 II.
16 ALLEGATIONS OF THE AMENDED COMPLAINT
17
18 This action is proceeding against: (1) the United States of
19 America; (2) Dr. Alexander Sinavsky, a physician formerly employed
20 at the Metropolitan Detention Center–Los Angeles (“MDC-LA”); and
21 (3) Dr. Esther Nicholas-Arafiles, also a physician formerly
22 employed at MDC-LA. (Complaint ¶¶ 21, 25, 26; see also Dkt. No.
23 111 at 2).
24
25 The Court has previously summarized the facts, as alleged in
26 the Amended Complaint, that are relevant to Plaintiff’s surviving
27 claims as follows:
28
1 Plaintiff was unjustly and unreasonably arrested on
2 February 8, 2003 and transported to MDCLA. [Compl.
3 ¶ 60.] In May 2003, while in pre-trial detention at
4 MDCLA, Plaintiff discovered blood in his urine
5 (hematuria). [Id. ¶ 63.] Plaintiff immediately sought
6 treatment from the medical staff, who administered blood
7 and urine tests but did not schedule a doctor’s
8 appointment for Plaintiff. [Id.]
9
10 In June 2003, Plaintiff again complained of
11 hematuria and was seen by Dr. Nicholas-Arafiles, a
12 physician at MDCLA. Plaintiff provided another
13 specimen, but Dr. Nicholas-Arafiles told Plaintiff to
14 “just ignore said medical condition,” saying it would
15 probably vanish, and denied his request to see a
16 urologist. [Id. ¶¶ 63-65.] Plaintiff again complained
17 of hematuria and severe pain in his lower back and pelvic
18 region, but Dr. Nicholas-Arafiles told Plaintiff it’s
19 “all in your head” and otherwise ignored the complaint
20 and denied his request to see a urologist. [Id. ¶¶ 66
21 67.]
22
23 In August 2003, Plaintiff was transferred to the
24 San Bernardino County Jail, where he continued to
25 experience various symptoms. . . . [Id. ¶¶ 68-70.]
26
27 In March 2004, after a hearing, United States
28 Magistrate Judge Victor Kenton ordered Plaintiff
1 returned to MDCLA, and ordered that Plaintiff be given
2 medical treatment. Plaintiff was returned to MDCLA on
3 March 25, 2004, but was not given the court-ordered
4 medical exam. [Id. ¶¶ 75-79.] Plaintiff remained at
5 MDCLA until May 2005, during which time his condition
6 worsened, his requests to see a urologist were denied,
7 and he received no relief from his symptoms. [Id. ¶¶ 72-
8 82, 84.] . . . [¶]
9
10 Plaintiff was at MDCLA sporadically from November
11 2005 through May 2006, and for the entire period from
12 May 26, 2006 until March 2008. [Id. ¶ 90-91, 99.] He
13 continued to experience hematuria and severe back and
14 pelvic pain. [Id. ¶ 90] Plaintiff informed Dr. Sinavsky
15 of these symptoms, and Dr. Sinavsky ordered blood and
16 urine tests, but these tests did not diagnose cancer,
17 and Sinavsky did not refer Plaintiff to a urologist.
18 [Id.] During this time Plaintiff provided six to eight
19 specimens, at least two of which indicated hematuria.
20 [Id. ¶ 91.] Plaintiff repeatedly sought a urology
21 appointment but was never given one. [Id.] Drs.
22 Nicholas-Arafiles and Sinavsky were both treating
23 Plaintiff during his time at MDCLA, and neither of them
24 gave Plaintiff appropriate treatment or referred him to
25 a urologist despite his repeated complaints and
26 requests. [Id. ¶¶ 99-106.]
27
28
1 In May 2008, Plaintiff was transferred again,
2 ultimately to the Federal Correctional Institution at
3 Big Spring, Texas. On July 24, 2008, he was examined by
4 an outside urologist, Dr. Razzak Jabur, who identified
5 a large tumor, diagnosed Plaintiff with bladder
6 carcinoma, and surgically removed the tumor. Dr. Jabur
7 told Plaintiff, “It’s unbelievable that your condition
8 went untreated and neglected for so long. If a person
9 went to see an Eye Doctor and you told the Eye Doctor
10 that you’re passing blood in the urine, the doctor would
11 tell you to go and see a Urologist.” [Id. ¶¶ 106-113.]
12
13 Plaintiff alleges that, as a result of the
14 deliberately indifferent medical treatment he was given
15 from 2003-2008, he unnecessarily suffered fear and
16 extreme pain, his cancer became advanced, and he faces
17 a higher risk of recurrence because the cancer was not
18 removed sooner. [Id. ¶¶ 112-113.]
19
20 (Order Regarding Further Proceedings on PLRA Screening, Dkt. No.
21 9, at 6-9) (footnotes omitted).
22
23 The Amended Complaint raises three surviving claims. Count I
24 alleges a claim under Bivens v. Six Unknown Named Agents of the
25 Federal Bureau of Narcotics, 403 U.S. 388 (1971), for deliberate
26 indifference to serious medical needs against Drs. Sinavsky and
27 Nicholas-Arafiles. (Id. ¶¶ 25-26, 268-78). Count II alleges a
28 medical negligence claim against the United States under the
1 Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. (“FTCA”).
2 (Id. ¶¶ 21, 279-91). Count III alleges another FTCA claim against
3 the United States for intentional infliction of emotional distress.
4 (Id. ¶¶ 292-96). The remaining Counts have been affirmatively
5 dismissed or mooted by the dismissal of various Defendants.3
6
7 III.
8 DR. SINAVSKY’S MOTION TO DISMISS
9
10 Dr. Sinavsky raises three grounds for dismissal of the claim
11 against him. First, he argues that Plaintiff’s claim is barred by
12 the statute of limitations. (MTD at 4; Reply at 2-7). Second, he
13 contends that the allegations fail to show that he was aware of
14 and purposefully chose to disregard Plaintiff’s serious medical
15 needs. (MTD at 5-7; Reply at 7-8). Third, he argues that he is
16 entitled to qualified immunity. (MTD at 7-10; Reply at 8-10).
17
18 IV.
19 STANDARDS GOVERNING MOTIONS TO DISMISS
20
21 A Rule 12(b)(6) motion to dismiss for failure to state a claim
22 should be granted if the plaintiff fails to proffer “enough facts
23 to state a claim to relief that is plausible on its face.” Bell
24 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
25 facial plausibility when the plaintiff pleads factual content that
26

27 3 The United States filed an Answer to the Amended Complaint on
December 18, 2015. (Dkt. No. 31). Dr. Nicholas-Arafiles filed an
28 Answer on October 12, 2016. (Dkt. No. 70).
1 allows the court to draw the reasonable inference that the
2 defendant is liable for the misconduct alleged.” Ashcroft v.
3 Iqbal, 556 U.S. 662, 678 (2009). Although the plaintiff must
4 provide “more than labels and conclusions, and a formulaic
5 recitation of the elements of a cause of action will not do[,]”
6 Twombly, 550 U.S. at 555, “[s]pecific facts are not necessary; the
7 [complaint] need only give the defendant[s] fair notice of what
8 the . . . claim is and the grounds upon which it rests.” Erickson
9 v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (internal quotation
10 marks and citation omitted).
11
12 “When ruling on a motion to dismiss, [the court] may generally
13 consider only allegations contained in the pleadings, exhibits
14 attached to the complaint, and matters properly subject to judicial
15 notice.” Colony Cove Props., LLC v. City of Carson, 640 F.3d 948,
16 955 (9th Cir. 2011) (footnote, internal quotation marks and
17 citations omitted). The court must accept the complaint’s
18 allegations as true, Twombly, 550 U.S. at 555-56, construe the
19 pleading in the light most favorable to the pleading party, and
20 resolve all doubts in the pleader’s favor. Berg v. Popham, 412
21 F.3d 1122, 1125 (9th Cir. 2005). However, the court “need not
22 accept as true allegations contradicting documents that are
23 referenced in the complaint or that are properly subject to
24 judicial notice.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588
25 (9th Cir. 2006). Likewise, “the tenet that a court must accept as
26 true all of the allegations contained in a complaint is
27 inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
28 Nonetheless, pro se pleadings are “to be liberally construed” and
1 are held to a less stringent standard than those drafted by a
2 lawyer. Erickson, 551 U.S. at 94; Hebbe v. Pliler, 627 F.3d 338,
3 342 (9th Cir. 2010).
4
5 If the court finds that a complaint fails to state a claim,
6 it must also decide whether to grant the plaintiff leave to amend.
7 Even when a request to amend is not made, “[l]eave to amend should
8 be granted unless the pleading could not possibly be cured by the
9 allegation of other facts, and should be granted more liberally to
10 pro se plaintiffs.” Lira v. Herrera, 427 F.3d 1164, 1176 (9th Cir.
11 2005) (internal quotation marks and citation omitted). However,
12 if amendment of the pleading would be futile, leave to amend is
13 properly denied. See Lipton v. Pathogenesis Corp., 284 F.3d 1027,
14 1039 (9th Cir. 2002).
15
16 V.
17 DISCUSSION
18
19 A. Dr. Sinavsky’s Statute Of Limitations Defense Cannot Be
20 Determined On A Motion To Dismiss
21
22 Dr. Sinavsky argues that Plaintiff’s deliberate indifference
23 claim is time-barred. (MTD at 4). According to Dr. Sinavsky, the
24 claim accrued when Plaintiff saw him in “2005 and 2007, and at
25 latest, in July 2008 when Plaintiff underwent surgery.” (Id.).
26 Plaintiff concedes that the applicable statute of limitations is
27 two years, and is tolled for an additional two years due to
28 Plaintiff’s incarceration. (Id.) (citing Cal. Code Civ. Proc.
1 §§ 335.1(a) & 352.1). However, according to Defendants, even
2 applying the four-year statute of limitations to the latest
3 possible accrual date, the limitations period expired in July 2012,
4 over seventeen months before Plaintiff initiated this action in
5 December 2013. (MTD at 4).
6
7 Plaintiff contends that his claim accrued on July 30, 2008,
8 when his bladder cancer was confirmed. (Opp. at 3). Plaintiff
9 asserts that the relevant limitations period is a combined four
10 years. (Id.). However, Plaintiff argues that his claim against
11 Dr. Sinavsky is timely because the statute of limitations must be
12 tolled while a prisoner completes the mandatory exhaustion
13 process.4 (Id.). Plaintiff states that he submitted his first

14 4 The Prison Litigation Reform Act of 1995 (the “PLRA”), 42 U.S.C.
§ 1997e(a), requires a prisoner to exhaust “such administrative
15 remedies as are available” before suing over prison conditions.
Booth v. Churner, 532 U.S. 731, 733-34 (2001). A prisoner must
16 pursue a remedy through all levels of appeal “as long as some
action can be ordered in response to the complaint.” Brown v.
17 Valoff, 422 F.3d 926, 934 (9th Cir. 2005).

18 Bivens claims against prison staff are exhausted by presentation
of the claims through the BOP grievance process. It begins with
19 the prisoner’s submission of an informal complaint using form BP-
8 (“Request to Staff”). Nunez v. Duncan, 591 F.3d 1217, 1219 (9th
20 Cir. 2010) (citing 28 C.F.R. §§ 542.13-.15). If the BP-8 is denied,
the prisoner may submit a “first level” “Request for Administrative
21 Remedy” to the Warden using form BP-9. Nunez, 591 F.3d at 1219.
If the Warden renders an adverse decision, the prisoner may appeal
22 to the Regional Director using a “second level” form BP-10
(“Regional Administrative Remedy Appeal”). Id. Finally, the
23 prisoner may appeal an adverse decision by the Regional Director
to the Central Office (also called the General Counsel) of the BOP
24 using a “third level” form BP-11 (“Central Office Administrative
Remedy Appeal”). Id. at 1219-20. “Administrative exhaustion is
25 complete when the General Counsel rules on the BP–11.” Champion
v. Smith, 2012 WL 930858, at *1 (E.D. Cal. Mar. 19, 2012); see also
26 28 C.F.R. § 542.15(a).

27 Tort claims against the United States follow an entirely separate
exhaustion procedure. A tort claim is exhausted after the claim
28 is presented to the appropriate federal agency and the claim is
1 grievance alleging the deliberate indifference by BOP physicians
2 on December 29, 2009, which tolled the statute of limitations until
3 his third level appeal was denied on November 26, 2010
4 (collectively, the “2009 Grievance”). (Opp. at 4) (citing Belair
5 Decl., Exh. A at 3-6 & Exh. B at 7). Plaintiff further states that
6 he pursued a second grievance on May 16, 2013, again alleging the
7 deliberate indifference of BOP physicians (collectively, the “2013
8 Grievance”), which tolled the statute of limitations until December
9 9, 2013, when he mailed a “Notice of Exhaustion of Administrative
10 Remedies” to the Clerk of Court for the Central District. (Opp.
11 at 4) (citing Complaint, Dkt. No. 3-5 at 4, 7-8). Plaintiff
12 maintains that these two periods tolled the running of the statute
13 of limitations for eleven months and seven months respectively and
14 that the combined eighteen months of additional tolling render this
15 action timely. (Opp. at 4).
16
17 In reply, Dr. Sinavsky appears to argue that California’s two-
18 year statutory tolling for prisoner claims was intended to cover
19 the exhaustion of administrative remedies and impliedly precludes
20 “duplicative” tolling for that purpose. (Reply at 3-4). Even if
21 additional tolling were available for exhaustion, Dr. Sinavsky
22 contends that the 2009 Grievance would not toll the claim against

23 finally denied, or six months have passed without a final
resolution. 28 U.S.C. § 2675(a). “A claim is presented properly
24 to an agency within the meaning of 28 U.S.C. § 2675(a) when the
agency is given sufficient written notice to commence
25 investigation, and the claimant places a value on the claim.” Avery
v. United States, 680 F.2d 608, 610 (9th Cir. 1982). To satisfy
26 the presentation requirement, a plaintiff “need only file a brief
notice or statement with the relevant federal agency containing a
27 general description of the time, place, cause and general nature
of the injury and the amount of compensation demanded.” Goodman
28 v. United States, 298 F.3d 1048, 1055 (9th Cir. 2002).
1 him because that Grievance concerned the alleged deliberate
2 indifference of a health care provider in Texas following
3 Plaintiff’s July 2008 operation, and was “unrelated” to the pre-
4 surgery care at issue in this action. (Id. at 5). Dr. Sinavsky
5 further contends that the 2013 Grievance, which specifically
6 alleged improper medical care at MDC-LA between 2003 and 2008, was
7 patently untimely because “[n]othing prevented Plaintiff from
8 filing [administrative] claims . . . in 2005, 2007 or 2009” to
9 exhaust his pre-surgery claims and therefore similarly cannot toll
10 the limitations period. (Id. at 6). Furthermore, to the extent
11 that the 2009 Grievance could be construed to encompass Plaintiff’s
12 pre-surgery claims, the 2013 Grievance would then be impermissibly
13 duplicative. (Id. at 5).
14
15 1. Standards
16
17 “‘[F]ederal law determines when a civil rights claim
18 accrues.’” Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002)
19 (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54
20 (9th Cir. 2000)). Under federal law, “a claim accrues when the
21 plaintiff knows or should know of the injury that is the basis of
22 the cause of action.” Douglas, 567 F.3d at 1109; Maldonado v.
23 Harris, 370 F.3d 945, 955 (9th Cir. 2004).
24
25 “Although federal law determines when a Bivens claim accrues,
26 the law of the forum state determines the statute of limitations
27 for such a claim.” Papa v. United States, 281 F.3d 1004, 1009 (9th
28 Cir. 2002). For civil rights claims, federal courts apply the
1 state “statute of limitations for personal injury actions, along
2 with the forum state’s law regarding tolling, including equitable
3 tolling, except to the extent any of these laws is inconsistent
4 with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.
5 2004). Effective January 1, 2003, the California statute of
6 limitations for personal injury actions is two years. See Cal.
7 Code Civ. Proc. § 335.1. This limitations period is statutorily
8 tolled for a period of two additional years for a person who is,
9 “at the time the cause of action accrued, imprisoned on a criminal
10 charge, or in execution under the sentence of a criminal court for
11 a term less than for life.” See Cal. Code Civ. Proc. § 352.1(a).
12
13 In addition, the Ninth Circuit instructs that “the applicable
14 statute of limitations must be tolled while a prisoner completes
15 the mandatory exhaustion process” required by the PLRA. Brown,
16 422 F.3d at 943 (emphasis added). This, too, comports with
17 California law, which provides that “[w]here exhaustion of an
18 administrative remedy is mandatory prior to filing suit, equitable
19 tolling is automatic: It has long been settled in this and other
20 jurisdictions that whenever the exhaustion of administrative
21 remedies is a prerequisite to the initiation of a civil action,
22 the running of the limitations period is tolled during the time
23 consumed by the administrative proceeding.” McDonald v. Antelope
24 Valley Community College Dist., 45 Cal. 4th 88, 101 (2008)
25 (emphasis added; internal quotation marks and citation omitted);
26 see also Cal. Code Civ. Proc. § 356 (tolling applies whenever
27 commencement of an action is statutorily prohibited). Accordingly,
28
1 the PLRA’s administrative exhaustion requirement provides a basis
2 for invoking California’s “automatic” equitable tolling doctrine.
3
4 Federal courts also apply the forum state’s general law of
5 equitable tolling. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.
6 1999). California courts’ “liberal application of the equitable
7 tolling rules . . . rests upon the reasoning that a claim should
8 not be barred ‘unless the defendant would be unfairly prejudiced
9 if the plaintiff were allowed to proceed.’” Cervantes v. City of
10 San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (quoting Collier v.
11 City of Pasadena, 142 Cal. App. 3d 917, 191 (1983)); see also
12 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1140 (9th
13 Cir. 2001) (quoting Cervantes and Collier); Lantzy v. Centex Homes,
14 31 Cal. 4th 363, 370 (2003) (“This court has applied equitable
15 tolling in carefully considered situations to prevent the unjust
16 technical forfeiture of causes of action, where the defendant would
17 suffer no prejudice.”). Under California law, a plaintiff will be
18 relieved from the limitations bar upon satisfying a three-pronged
19 test: “(1) defendant must have had timely notice of the claim;
20 (2) defendant must not be prejudiced by being required to defend
21 the otherwise barred claim; and (3) plaintiff’s conduct must have
22 been reasonable and in good faith.” Fink, 192 F.3d at 916.
23
24 The statute of limitations may be equitably tolled at the
25 outset of litigation if the complaint alleges facts sufficient to
26 show such an entitlement. See Cervantes, 5 F.3d at 1276-77.
27 However, “[b]ecause the applicability of the equitable tolling
28 doctrine often depends on matters outside the pleadings, it is not
1 generally amenable to resolution on a Rule 12(b)(6) motion.”
2 Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th
3 Cir. 1995) (internal citations and quotation marks omitted); see
4 also Daviton, 241 F.3d at 1140 (“only in the rare case” may the
5 analysis of California’s equitable tolling doctrine be resolved at
6 the pleading stage); Cervantes, 5 F.3d at 1276 (“California’s fact-
7 intensive test for equitable tolling is more appropriately applied
8 at the summary judgment or trial stage of litigation.”). “A motion
9 to dismiss based on the running of the statute of limitations
10 period may be granted only if the assertions of the complaint, read
11 with the required liberality, would not permit the plaintiff to
12 prove that the statute was tolled.” Supermail Cargo, 68 F.3d at
13 1206 (9th Cir. 1995) (internal citations and quotation marks
14 omitted); see also Von Saher v. Norton Simon Museum of Art at
15 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Supermail
16 Cargo).
17
18 2. Prior Proceedings
19
20 To address Dr. Sinavsky’s statute of limitations defense, it
21 is necessary to review in some detail the chronology of Plaintiff’s
22 efforts to exhaust his constitutional and tort claims, as these
23 issues are inter-related. In turn, Plaintiff’s pursuit of
24 administrative remedies in 2009 and 2013 must be considered in the
25 context of another civil rights action that Plaintiff filed in this
26 Court in 2009, which was dismissed without prejudice in 2013.5 (See
27
5 The Court takes judicial notice of Plaintiff’s prior actions in
28 this Court. See In re Korean Air Lines Co., Ltd., 642 F.3d 685,
1 Leichner v. United States of America, et al., C.D. Cal. EDCV 09-
2 0006 JFW (CW) (“Prior Action”), Dkt. No. 1).
3
4 On December 24, 2008, approximately five months after his
5 bladder surgery, Plaintiff filed a civil complaint in this Court
6 raising claims concerning the medical care he had received between
7 2003 and July 2008, including the care at MDC-LA. (Prior Action,
8 Dkt. No. 1).6 The Court dismissed the Complaint with leave to
9 amend seven and a half months later, on August 11, 2009. (Id.,
10 Dkt. No. 10). Plaintiff constructively filed a First Amended
11 Complaint (“FAC”) on October 17, 2009. (Id., Dkt. No. 19, at 37).
12
13 On December 29, 2009, approximately one year after initiating
14 the Prior Action, Plaintiff began pursuing the 2009 Grievance.
15 (Belair Decl., Exh. A at 3-6). While Plaintiff claimed he was
16 submitting the 2009 Grievance “in tandem with [his] civil suit”
17 (i.e., the Prior Action), the grievance stated the following:
18
19 “I, Moshe Leichner, hereby make allegations informally
20 including but not limited to joint and several liability for the
21 ongoing individual and collective negligence, reckless disregard
22 and gross negligence on behalf of Dr. Jorge Partida, M.D., C.D.
23 (FCI-Big Spring) in conjunction with the Federal Bureau of Prisons,
24 its officers, agents and employees, named or unnamed from May 2003
25
26
689 n.1 (9th Cir. 2011) (a court may take judicial notice of a
27 court’s own records in other cases and the records of other courts).
6 Dr. Sinavsky was not a named Defendant in any pleading in the
28 Prior Action. (Prior Action, Dkt. Nos. 1, 19, 51).
1 to the present and ongoing for the crime, against my person of
2 deliberate indifference. (Dkt. 116-1 at 2-4).”7
3
4 While Plaintiff specifically complained that Dr. Jorge
5 Partida at the Federal Correctional Institution at Big Spring,
6 Texas was refusing to heed the urologist’s post-surgery
7 recommendations that Plaintiff receive a CT scan, MRI and a follow-
8 up urologist consult, he also notified the BOP that he was
9 complaining about “deliberate indifference” from “May 2003 to the
10 present.” (Id. at 4). Plaintiff appealed adverse determinations
11 of the 2009 Grievance through all levels of the administrative
12 appeals process, which culminated in the denial of his third-level
13 appeal on November 26, 2010. (Id., Exh. B at 7).
14
15 On March 14, 2012, two years and four months after Plaintiff
16 filed the FAC, the Court dismissed the FAC with leave to amend.
17 (Prior Action, Dkt. No. 45). Plaintiff constructively filed a
18 Second Amended Complaint (“SAC”) on May 25, 2012. (Id., Dkt. No.
19 51 at 46). On July 6, 2012, the Court ordered service of the SAC
20 by the United States Marshal. (Id., Dkt. No. 53). Process receipts
21 and returns were docketed between November 20, 2012 and January
22 22, 2013 reflecting service on some, but not all, of the named
23 Defendants. (Id., Dkt. Nos. 59, 63, 69). After receiving an
24 extension, (id., Dkt. No. 65), Defendants jointly filed a motion

25
7 While Defendant argues that the 2009 grievance only involved
26 conduct by Dr. Partida, the Court finds that Plaintiff’s claim for
“collective negligence” and “deliberate indifference” from “May
27 2003 to the present” could reasonably be construed as placing
Defendant on notice that Plaintiff was complaining about Dr.
28 Sinavsky’s conduct as well as Dr. Partida and other BOP employees.
1 to dismiss the SAC on February 28, 2013, alleging in part that
2 Plaintiff had not administratively exhausted his claims before
3 filing suit. (Id., Dkt. No. 71, at 4-6).
4
5 On May 16, 2013, Plaintiff filed a second-level appeal
6 concerning the 2013 Grievance.8 (See Complaint, Dkt. No. 3-5, at
7 7-8). Plaintiff filed a third-level appeal of the 2013 Grievance
8 on June 27, 2013. (Id. at 5-6). Separately, on June 12, 2013,
9 the Department of Justice notified Plaintiff that it was forwarding
10 his FTCA claim to the BOP for agency consideration. (Id. at 1).
11
12 On July 12, 2013, Plaintiff notified the Court in the Prior
13 Action that he was “seeking exhaustion of his administrative
14 remedies under the PLRA and FTCA so as to enable [him] the
15 opportunity to refile this suit at the proper time” if the Court
16 determined that he had not cured the exhaustion defect. (Prior
17 Action, Dkt. No. 76 at 2). Plaintiff asked that the Prior Action
18 be voluntarily dismissed without prejudice if the defect was fatal.
19 (Id.). On September 12, 2013, the Court granted Plaintiff’s
20 request and dismissed the action without prejudice for failure to
21 exhaust. (Id., Dkt. No. 77, at 6).
22
23 On September 24, 2013, Plaintiff submitted an Inmate Request
24 to Staff complaining that he had not received a decision on his
25 third-level administrative appeal. (Complaint, Dkt. No. 3-5, at
26 12). Staff responded the next day, stating that “[p]er policy, if
27
8 The record does not reflect when or if Plaintiff filed an informal
28 complaint or first-level appeal related to the 2013 Grievance.
1 you have received no response and it is past the extension date,
2 you can consider the request denied and file through the
3 appropriate U.S. District Court. It is recommended you file a tort
4 claim if this is pertaining to money damages.” (Id.).
5
6 On October 16, 2013, Plaintiff wrote a letter to the BOP
7 asking for confirmation that the agency had received a copy of his
8 FTCA claim from the Department of Justice.9 (Id. at 3). On
9 December 9, 2013, Plaintiff sent a “Notice of Exhaustion of
10 Administrative Remedies” to the Clerk of Court for the Central
11 District of California asking that the Court take “judicial notice”
12 that he had taken the necessary steps to exhaust his claims. (Id.
13 at 4). On the following day, December 10, 2013, Plaintiff
14 constructively filed the instant action.
15
16 3. Discussion
17
18 The Parties generally agree that Plaintiff’s claims accrued
19 on July 30, 2008, when his bladder tumor was surgically removed,
20 and that he constructively filed this action on December 10, 2013.
21 The time that elapsed between those two events is 5 years, 4 months,
22 10 days. Accordingly, even taking into account California’s two-
23 year statute of limitations for personal injury actions and the
24 additional two-year statutory tolling for inmate claims, Cal. Code
25 Civ. Proc. §§ 335.1 & 352.1(a), the instant action would be untimely
26 absent some form of equitable tolling.
27
9 The record does not reflect whether Plaintiff received a response
28 from the BOP regarding his FTCA claim.
1 Contrary to Dr. Sinavsky’s contention, the statute of
2 limitations is tolled while a prisoner exhausts his claims. This
3 “automatic” equitable tolling is required both by the Ninth Circuit
4 and California law. See Brown, 422 F.3d at 943; McDonald, 45 Cal.
5 4th at 101. If, as Plaintiff urges, the Court applied both the
6 eleven months it took to fully exhaust the 2009 Grievance and the
7 seven months he claims it took to exhaust the 2013 Grievance,10 the
8 filing of this action would fall comfortably within the four-year
9 statute of limitations. The Court finds that the 2009 grievance,
10 which specifically complained of the BOP’s medical care from May
11 2003 to the present, placed Defendant on notice of the present
12 claims. See Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (a
13 prisoner need only “alert prison officials to a problem”) (quoting
14
10 The record before the Court does not permit a precise
15 determination of how long it took to exhaust the 2013 Grievance
because it does not indicate when Plaintiff started the 2013
16
Grievance process. The first document in the record pertaining to
17 the 2013 Grievance is the second-level appeal dated May 16, 2013.
(Complaint, Dkt. No. 3-5, at 7).
18
The Court also disagrees that the termination of the 2013 Grievance
19 process should be measured, as Plaintiff now contends, by
Plaintiff’s pre-filing letter to the Court Clerk dated December 9,
20
2013, asking for “judicial notice” of the exhaustion of his claims.
21 (See Opp. at 4; see also Complaint, Dkt. No. 3-5, at 4). BOP
regulations provide that if an inmate does not receive a response
22 to a third-level appeal “within the time allotted for reply,
including extension, the inmate may consider the absence of a
23 response to be a denial at that level.” 28 C.F.R. § 524.18. The
Amended Complaint attaches a receipt from the Central Office
24 setting September 3, 2013 as the extended response deadline for
Plaintiff’s third level appeal. (Complaint, Dkt. No. 3-5, at 11).
25
Accordingly, even assuming, without deciding, that the appeals were
26 not otherwise defective, Plaintiff’s constitutional claims were
deemed exhausted on September 3, 2013, as he admits in the Amended
27 Complaint. (See id. ¶ 57). The Amended Complaint further alleges
that Plaintiff’s FTCA claims were exhausted on December 3, 2013.
28 (Id. ¶ 58).
1 Jones v. Bock, 549 U.S. 199, 219 (2997); Griffin v. Arpaio, 557
2 F.3d 1117, 1120 (9th Cirl. 2009) (“The primary purpose of a
3 grievance is to alert the prison to a problem and facilitate its
4 resolution, not law groundwork for litigation”). The grievance
5 “need not include legal terminology or legal theories,” nor is it
6 necessary to “provide personal notice to a particular official that
7 he may be sued.” Reyes, 810 F.3d at 659 (citations omitted). Thus,
8 prison officials should have began their investigation into
9 Plaintiff’s claims involving his medical care dating back to 2003,
10 including Dr. Sinavsky’s treatment of Plaintiff, when they received
11 the 2009 grievance. The statute would be tolled while that
12 grievance was exhausted.
13
14 Moreover, “automatic” equitable tolling for exhaustion does
15 not comprise the entirety of the Court’s equitable tolling
16 analysis. Viewed through the prism of the Prior Action, it is
17 evident that Plaintiff did not sit idly by after his July 30, 2008
18 operation to pursue his claims concerning his pre-surgery care.
19 Instead, he constructively filed the Prior Action within five
20 months of the operation. Once Plaintiff learned of Defendants’
21 contentions regarding exhaustion, he very quickly began the
22 exhaustion process, to “enable [him] the opportunity to refile”
23 his claims in a separate lawsuit after exhaustion was complete.
24 (Prior Action, Dkt. No. 76 at 2). That sequence of events -- the
25 filing of an unexhausted complaint, the discovery that claims must
26 be exhausted prior to filing, a belated attempt to exhaust, and
27 dismissal of the complaint without prejudice -- is not uncommon,
28
1 and under some circumstances, would not necessarily provide grounds
2 for equitable tolling.
3
4 However, the extreme delay between the constructive filing of
5 the Prior Action on December 24, 2008 and the February 28, 2013
6 filing of the motion to dismiss takes this case out of the realm
7 of “most circumstances.” That delay lasted four years, two months
8 and four days -- longer than the entire statute of limitations
9 period generally applying to prisoner claims. Accordingly, once
10 Plaintiff learned of the exhaustion requirement, the Court’s delay
11 made it impossible for him to exhaust and refile his claims, even
12 though he moved promptly to file suit after his claims accrued.
13
14 Plaintiff is not entirely, or even primarily, responsible for
15 the significant delays preceding the filing of Defendants’ Motion
16 to Dismiss in the Prior Action. While the Court dismissed
17 Plaintiff’s claims twice, requiring him to draft and file two
18 amended complaints, Plaintiff does not appear to have unduly
19 delayed filing his amended complaints. Plaintiff filed both the
20 First Amended Complaint and the Second Amended Complaint in the
21 Prior Action approximately ten weeks after the respective dismissal
22 orders issued. (See Prior Action, Dkt. Nos. 10, 19 (FAC) & 45, 51
23 (SAC)). These intervals combined account for approximately five
24 months of the limitations period. In contrast, there was a delay
25 of over seven months between the constructive filing of the
26 original Complaint (December 24, 2008) and the Court’s dismissal
27 of that pleading with leave to amend (August 11, 2009), (id., Dkt.
28 Nos. 1, 10), and two years and four months between Plaintiff’s
1 filing of the FAC (October 17, 2009) and the Court’s dismissal of
2 the FAC with leave to amend (March 14, 2012).11 (See id., Dkt.
3 Nos. 19, 45). Additionally, there was a delay of nearly eight
4 months between the date the Court directed the U.S. Marshal to
5 serve the SAC (July 6, 2012) and the filing of the motion to dismiss
6 (February 28, 2013). (Id., Dkt. Nos. 53, 71). Combined, these
7 three periods account for over three and a half years of the four-
8 year limitations period.
9
10 Had these delays not occurred, Plaintiff would have learned
11 about the exhaustion requirement much sooner and would have been
12 able to remedy any alleged failure to exhaust comfortably within
13 the limitations period. Instead, the motion to dismiss in the
14 Prior Action was not filed until after the four-year statute of
15 limitations period had already expired. Where a filing deadline
16 lapses due to delays beyond the plaintiff’s control, including
17 those attributable to the Court, equitable tolling may apply. For
18 example, in Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir. 2013),
19 aff’d and remanded sub nom. United States v. Kwai Fun Wong, 135 S.
20 Ct. 1625 (2015), plaintiff filed an action while simultaneously
21 seeking to exhaust an unpled FTCA claim. When the FTCA claim was
22 exhausted, plaintiff filed a motion for leave to amend to add the
23 newly-exhausted claim. Id. at 1033-34. Pursuant to the FTCA,
24 plaintiff was required to present her claim to the district court
25 within six months of the agency’s denial. However, the Magistrate
26

27 11 On April 1, 2011, eighteen months after filing the FAC, Plaintiff
filed a motion requesting that the Court either screen the FAC or
28 order it served. (Prior Action, Dkt. No. 43).
1 Judge did not issue a Report and Recommendation recommending that
2 the motion for leave to amend be granted until five months after
3 the motion for leave was filed, and the District Judge did not
4 issue an order accepting the Magistrate Judge’s recommendation
5 until three weeks after the six-month FTCA filing deadline had
6 passed. Id. at 1034. Emphasizing that the trial court did not
7 act on plaintiff’s motion for leave to amend until after the statute
8 of limitations had run, the Ninth Circuit concluded that these
9 “circumstances easily justif[ied] equitable tolling” because the
10 delay was beyond plaintiff’s control. Id. at 1052.
11
12 Given the unique set of impediments to the timely resolution
13 of the Prior Action, Plaintiff would appear to be entitled to
14 equitable tolling for at least two and a half years to account for
15 delays caused by the Court and the Marshal Service, which would
16 bring the instant action well within the limitations period.
17 Plaintiff acted diligently and in good faith upon learning of his
18 exhaustion error. Under California’s equitable tolling rules, the
19 Court must also consider notice and prejudice to the defendant in
20 allowing a claim to go forward. While there may be some question
21 as to whether Dr. Sinavsky received timely notice of the instant
22 claim, the Court notes that at least part of any delay is due to
23 the fact that the BOP would not reveal his last known address to
24 the United States Marshal Service without further proceedings.
25 (See Dkt. No. 21) (process receipt and return reflecting that
26 summons was unexecuted on Dr. Sinavsky because the BOP would not
27 provide a forwarding address absent a court order). Furthermore,
28 there is no evidence before the Court conclusively showing when
1 Dr. Sinavsky received actual notice, or if he suffered any
2 prejudice, both of which are matters that are ill-suited for
3 resolution on a motion to dismiss.
4
5 Accordingly, it is recommended that Dr. Sinavsky’s Motion be
6 DENIED to the extent that it claims that Plaintiff’s action is
7 untimely. It is further recommended that dismissal be without
8 prejudice to asserting a statute of limitations defense on summary
9 judgment contingent upon a showing of actual prejudice.
10
11 B. The Complaint Adequately Alleges A Claim For Deliberate
12 Indifference Against Dr. Sinavsky
13
14 Dr. Sinavsky argues that the Amended Complaint fails to state
15 a deliberate indifference claim against him because even assuming
16 that Plaintiff’s hematuria and complaints of lower back and pelvic
17 pain constituted a serious medical need, Plaintiff has not
18 sufficiently alleged that Defendant was aware of and consciously
19 disregarded that need. (MTD at 5-7). The Court disagrees.
20
21 The “unnecessary and wanton infliction of pain” constitutes
22 cruel and unusual punishment forbidden by the Eighth Amendment.
23 Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation
24 marks and citation omitted). A defendant is liable for the delay
25 or denial of a prisoner’s medical care in violation of the Eighth
26 Amendment only when the defendant is “deliberately indifferent” to
27 the prisoner’s known “serious medical needs.” Jett v. Penner, 439
28 F.3d 1091, 1096 (9th Cir. 2006).
1 To establish a “serious medical need,” the prisoner must
2 demonstrate that “failure to treat a prisoner’s condition could
3 result in further significant injury or the ‘unnecessary and wanton
4 infliction of pain.’” Id. (citation omitted). For example, “‘the
5 existence of an injury that a reasonable doctor or patient would
6 find important and worthy of comment or treatment; the presence of
7 a medical condition that significantly affects an individual’s
8 daily activities; or the existence of chronic and substantial pain
9 are examples of indications that a prisoner has a ‘serious’ need
10 for medical treatment.’” Wilhelm v. Rotman, 680 F.3d 1113, 1122
11 (9th Cir. 2012) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60
12 (9th Cir. 1992), reversed on other grounds by WMX Technologies,
13 Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)).
14
15 To establish “deliberate indifference” to such a need, the
16 prisoner must demonstrate: “(a) a purposeful act or failure to
17 respond to a prisoner’s pain or possible medical need, and (b) harm
18 caused by the indifference.” Wilhelm, 680 F.3d at 1122 (quoting
19 Jett, 439 F.3d at 1096). Deliberate indifference “may appear when
20 prison officials deny, delay or intentionally interfere with
21 medical treatment, or it may be shown by the way in which prison
22 physicians provide medical care.” Id. The defendant must have
23 been subjectively aware of a serious risk of harm and must have
24 consciously disregarded that risk. See Farmer v. Brennan, 511 U.S.
25 825, 845 (1994).
26 \\
27 \\
28 \\
1 Deliberate indifference therefore requires “a purposeful act
2 or failure to respond to a prisoner’s pain or possible medical need
3 . . . .” Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d
4 1062, 1081 (9th Cir. 2013) (quoting Jett, 439 F.3d at 1096)
5 (emphasis added)). Mere malpractice or “even gross negligence” in
6 the provision of medical care does not establish a deliberate
7 indifference claim. Lemire, 726 F.3d at 1082; Wilhelm, 680 F.3d
8 at 1123 (a “negligent misdiagnosis” does not state a claim for
9 deliberate indifference). In addition, “‘[a] difference of opinion
10 between a physician and the prisoner -- or between medical
11 professionals -- concerning what medical care is appropriate does
12 not amount to deliberate indifference.’” Hamby v. Hammond, 821
13 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 681 F.3d
14 978, 987 (9th Cir. 2012), overruled in part on other grounds by
15 Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)).
16
17 The allegations against Dr. Sinavsky satisfy both prongs of a
18 deliberate indifference claim. There is no serious dispute that
19 Plaintiff has adequately alleged a serious medical need. The
20 Amended Complaint states that while housed at MDC-LA between 2003
21 and 2008, Plaintiff suffered from chronic hematuria, with
22 accompanying severe back and pelvic pain. (Complaint ¶¶ 63, 90-
23 91, 99). Plaintiff further alleges that the presence of blood in
24 urine would signal to any physician that the patient must see a
25 urologist, regardless of test results. (Id. ¶¶ 106-13). Finally,
26 Plaintiff states that because his condition was not properly
27 treated at MDC-LA, he suffered years of unnecessary pain and
28
1 anxiety, his bladder cancer became more advanced, and he faces a
2 higher risk of recurrence. (Id. ¶¶ 112-13).
3
4 Plaintiff also adequately alleges that Dr. Sinavsky was
5 deliberately indifferent to his serious medical needs. Plaintiff
6 states that he repeatedly told Dr. Sinavsky of his symptoms and
7 requested a urology consult, but Dr. Sinavsky made no referral,
8 even though at least two of Plaintiff’s specimens confirmed his
9 complaints of hematuria. (Id. ¶¶ 90-106). While Plaintiff
10 concedes that the tests Dr. Sinavsky ordered did not diagnose
11 cancer, his hematuria and severe pain persisted and worsened.
12 (Id.). Once Plaintiff was permitted to see a urologist after being
13 transferred from MDC-LA to a prison in Texas, his cancer was quickly
14 diagnosed and he underwent an operation within a week of the
15 diagnosis to remove a large tumor. (Id. ¶¶ 108-12).
16
17 Dr. Sinavsky’s primary argument is that because he responded
18 to Plaintiff’s complaints by ordering blood and urine tests to
19 determine the cause of the hematuria, none of which detected
20 Plaintiff’s cancer, he could not have been deliberately indifferent
21 to Plaintiff’s serious medical needs. (MTD at 5-6). However,
22 Dr. Sinavsky does not address Plaintiff’s contention that even
23 though Plaintiff’s test results did not reveal the cause of his
24 symptoms, Dr. Sinavsky knew that Plaintiff’s hematuria and severe
25 pain persisted, yet refused to further investigate and treat those
26 symptoms by referring Plaintiff to a urologist.
27 \\
28 \\
1 Direct evidence of a prison official’s knowledge of a
2 substantial risk of harm, as would have been clearly present had
3 Dr. Sinavsky ignored test results affirmatively showing that
4 Plaintiff had cancer, is not necessary to allege or even prove a
5 defendant’s subjective awareness, as this inquiry is “subject to
6 demonstration in the usual ways, including inference from
7 circumstantial evidence.” Farmer, 511 U.S. at 842. Many courts
8 have found that a prisoner’s repeated requests to a prison official
9 for medical treatment may suffice to impute the official’s
10 subjective knowledge. See, e.g., Hudson v. McHugh, 148 F.3d 859,
11 864 (7th Cir. 1998) (allegations that prison physician disregarded
12 plaintiff’s repeated requests for epilepsy medication presented
13 “the prototypical case of deliberate indifference, an inmate with
14 a potentially serious problem repeatedly requesting medical aid,
15 receiving none, and then suffering a serious injury”); Harris v.
16 Hegmann, 198 F.3d 153, 159-60 (5th Cir. 1999) (allegations that
17 officers ignored an inmate’s repeated requests for medical
18 treatment and complaints of excruciating pain stated a deliberate
19 indifference claim).
20
21 Plaintiff’s allegations that Dr. Sinavsky knew that Plaintiff
22 chronically had blood in his urine over a period of years yet still
23 did not refer Plaintiff to a urologist adequately state a claim
24 for deliberate indifference sufficient to survive a 12(b)(6)
25 motion. Accordingly, it is recommended that Dr. Sinavsky’s Motion
26 to Dismiss be DENIED to the extent that it is based on Plaintiff’s
27 purported failure to state a deliberate indifference claim.
28
1 C. Dr. Sinavsky’s Qualified Immunity Defense Is Premature
2
3 Dr. Sinavsky also argues that he is entitled to qualified
4 immunity because it is not unreasonable to decline to authorize a
5 urology consult when, as here, test results do not detect cancer
6 or other abnormalities. (MTD at 7-10). The record is not
7 sufficiently developed to resolve Dr. Sinavsky’s immunity claim.
8
9 “The doctrine of qualified immunity protects government
10 officials ‘from liability for civil damages insofar as their
11 conduct does not violate clearly established statutory or
12 constitutional rights of which a reasonable person would have
13 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
14 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified
15 immunity is ‘an entitlement not to stand trial or face the other
16 burdens of litigation.’” Hopkins v. Bonvicino, 573 F.3d 752, 762
17 (9th Cir. 2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
18 (1985)). Indeed, “the ‘driving force’ behind creation of the
19 qualified immunity doctrine was a desire to ensure that
20 ‘insubstantial claims’ against government officials [will] be
21 resolved prior to discovery.’” Pearson, 555 U.S. at 231 (quoting
22 Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).
23
24 In analyzing whether qualified immunity applies, a court must
25 determine “whether, taken in the light most favorable to [the
26 plaintiff], Defendants’ conduct amounted to a constitutional
27 violation, and . . . whether or not the right was clearly
28 established at the time of the violation.” Bull v. City and County
1 of San Francisco, 595 F.3d 964, 971 (9th Cir. 2010) (internal
2 quotation marks omitted; brackets in original). “For a
3 constitutional right to be clearly established, its contours must
4 be sufficiently clear that a reasonable official would understand
5 that what he is doing violates that right.” Hope v. Pelzer, 536
6 U.S. 730, 739 (2002) (internal quotation marks omitted). A finding
7 that a government official’s conduct violates clearly established
8 law requires that “existing precedent must have placed the
9 statutory or constitutional question beyond debate.” Ashcroft v.
10 al-Kidd, 563 U.S. 731, 741 (2011). A district court is not required
11 to address these inquiries in a particular order, but may instead
12 “exercise [its] sound discretion in deciding which of the two
13 prongs of the qualified immunity analysis should be addressed first
14 in light of the circumstances in the particular case at hand.”
15 Pearson, 555 U.S. at 226; see also Bull, 595 F.3d at 971.
16
17 By 2003, when Plaintiff began seeking medical care at MDC-LA,
18 it was beyond serious dispute that a prison physician had a duty
19 to address a prisoner’s repeated complaints of chronic pain and
20 other potentially severe physical symptoms. See Estelle v. Gamble,
21 429 U.S. 97, 104 (1976); McGuckin, 974 F.2d at 1059–60 (deliberate
22 indifference to “the existence of chronic and substantial pain”
23 violates the Eighth Amendment); Brock v. Wright, 315 F.3d 158, 163
24 (2d Cir. 2003) (“We will no more tolerate prison officials’
25 deliberate indifference to the chronic pain of an inmate than we
26 would a sentence that required the inmate to submit to such pain.”);
27 Maynard v. New Jersey, 719 F. Supp. 292, 293 (D. N.J. 1989)
28 (complaint adequately alleged deliberate indifference claim based
1 on medical staff’s failure for four months to diagnose prisoner’s
2 AIDS while ineffectively treating his multiple symptoms with cold
3 medications).
4
5 Plaintiff alleges that he experienced chronic, debilitating
6 pain and blood in his urine for several years, and that
7 Dr. Sinavsky, despite knowing of the persistence of his symptoms,
8 refused to authorize a urology consult. Without further
9 development of the factual record, it is difficult to determine
10 whether Dr. Sinavsky’s specific actions entitle him to qualified
11 immunity. The Motion’s nearly systematic reliance on summary
12 judgment cases in support of Dr. Sinavsky’s qualified immunity
13 argument is unavailing because in those cases, the factual record
14 had been developed and an informed decision could be made. (See
15 MTD at 9-10) (citing Hamby, 821 F.3d at 1093 (MSJ); Taylor v.
16 Barkes, 135 S. Ct. 2042, 2045 (2015) (MSJ); Grady v. Robinson, 14
17 F. App’x 964, 965 (9th Cir. 2001) (MSJ)). Dr. Sinavsky’s reliance
18 on Bess v. Campbell, 2013 WL 3816997 (C.D. Cal. July 23, 2013), is
19 similarly misplaced. (MTD at 9). Although the Bess Court dismissed
20 plaintiff’s deliberate indifference claims with prejudice on a
21 motion to dismiss, the facts alleged are distinguishable. In Bess,
22 plaintiff alleged that two doctors, one whom he saw once, and
23 another whom he saw twice, were deliberately indifferent because
24 they made “uninformed” treatment decisions regarding his hematuria
25 by prescribing antibiotics based on tests that failed to reveal
26 his bladder cancer. Bess, 2013 WL 3816997, at *10. Plaintiff also
27 alleged that a third doctor, who saw him over a period of months,
28 failed to conduct further tests to rule out cancer. Id. at *11.
1 However, that doctor “put in an urgent referral for Plaintiff to
2 see a urologist.” Id. (emphasis in original). Here, Plaintiff
3 alleges that Dr. Sinavsky treated him for chronic hematuria over a
4 period of years without ever referring him to a urologist.
5
6 As the Ninth Circuit has recognized, a motion to dismiss on
7 qualified immunity grounds puts the court in the difficult position
8 of attempting to decide “far-reaching constitutional questions on
9 a nonexistent factual record.” Kwai Fun Wong v. United States,
10 373 F.3d 952, 957 (9th Cir. 2004). While a defendant has the right
11 to assert a qualified immunity defense on a motion to dismiss, “the
12 exercise of that authority is not a wise choice in every case,”
13 particularly when discovery would “readily reveal” whether
14 plaintiff’s claims were baseless. Id. Accordingly, it is
15 recommended that Dr. Sinavsky’s Motion be DENIED to the extent that
16 it is based on his entitlement to qualified immunity, without
17 prejudice to reasserting a qualified immunity defense in a motion
18 for summary judgment.
19 \\
20 \\
21 \\
22 \\
23 \\
24 \\
25 \\
26 \\
27 \\
28 \\
1 VI.
2 RECOMMENDATION
3
4 Consistent with the foregoing, IT IS RECOMMENDED that the
5 District Judge issue an Order: (1) accepting this Report and
6 Recommendation; (2) DENYING Dr. Sinavsky’s Motion to Dismiss,
7 without prejudice to asserting a statute of limitations and/or
8 qualified immunity defense on summary judgment; and (3) ORDERING
9 Dr. Sinavsky to file an Answer to the Amended Complaint within
10 fourteen days of the date of the District Judge’s Order Accepting
11 this Report and Recommendation.
12
13 DATED: February 9, 2018
/S/ __________
14 SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
15
16
17
18 NOTICE
19
20 Reports and Recommendations are not appealable to the Court
21 of Appeals, but may be subject to the right of any party to file
22 Objections as provided in Local Civil Rule 72 and review by the
23 District Judge whose initials appear in the docket number. No
24 Notice of Appeal pursuant to the Federal Rules of Appellate
25 Procedure should be filed until entry of the Judgment of the
26 District Court.
27
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11377951. Public record. Not legal advice.