(PS) Lopez v. Chew

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 PEGGY LOPEZ, No. 2:24-cv-0570-DAD-CKD (PS) 12 Plaintiff, 13 v. ORDER GRANTING IFP REQUEST AND GRANTING LEAVE TO AMEND 14 STEPHEN CHEW MD, (ECF No. 2.) 15 Defendant. [16] 17 Plaintiff Peggy Lopez (“Plaintiff”), who proceeds without counsel in this action, requests 18 leave to proceed in forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the 19 commencement of an action “without prepayment of fees or security” by a person who is unable 20 to pay such fees). Plaintiff’s affidavit makes the required financial showing, so Plaintiff’s request 21 is granted. 22 However, the determination that a plaintiff may proceed without payment of fees does not 23 complete the inquiry. Pursuant to 28 U.S.C. § 1915 (e), the Court must screen every in forma 24 pauperis proceeding and must dismiss the case if it is “frivolous or malicious,” “fails to state a 25 claim on which relief may be granted,” or “seeks monetary relief against a defendant who is 26 immune from such relief.” 28 U.S.C. § 1915 (e)(2)(B); Lopez v. Smith, 203 F.3d 1122 , 1126-27 [27] 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636 (b)(1) and Fed. R. Civ. P. 72. 1 (2000). In performing this screening, the Court liberally construes a pro se plaintiff's pleadings. 2 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 454 U.S. 3 364, 365 (1982) (per curiam). Further, the federal court has an independent duty to ensure it has 4 subject matter jurisdiction in the case. See United Investors Life Ins. Co. v. Waddell & Reed Inc., [5] 360 F.3d 960, 967 (9th Cir. 2004). 6 I. Allegations in the Complaint 7 Plaintiff alleges that on February 25, 2022, Defendant Dr. Chew, an anesthesiologist, 8 attempted to intubate Plaintiff during her surgery at the Oroville Hospital despite being informed 9 that Plaintiff could not be intubated. (ECF No. 1 at 2-3, 4.) Defendant was informed prior to 10 surgery that Plaintiff had “extreme sensitivity to aesthetics and [that Plaintiff] suffers with sleep 11 apnea.” (Id. at 3, 4.) Defendant was also reminded during the surgery by Plaintiff’s surgeon, Dr. 12 Lionel Foster, that Plaintiff could not be intubated. (Id.) Plaintiff alleges she was left with “a 13 bruised and swollen mouth.” (Id.) Plaintiff further alleges that “another Anesthesiologist and 14 Knee Surgeon” told Plaintiff that “she should have never suffered a damaged mouth from the 15 surgery.” (Id. at 3-4.) 16 Plaintiff alleges the Court has diversity jurisdiction in this action. Plaintiff is a citizen of 17 California and Defendant is a citizen of Hawaii. (Id. at 2.) Plaintiff seeks monetary relief in the 18 total amount of $920,000. (Id. at 5.) 19 II. Pleading Standards 20 A complaint must contain “a short and plain statement of the claim showing that the 21 pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While factual allegations are accepted as 25 true, legal conclusions are not. Iqbal, 556 U.S. at 678 . Courts “are not required to indulge 26 unwarranted inferences[.]” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 27 (internal quotation marks and citation omitted). 28 Pro se litigants are entitled to have their pleadings liberally construed and to have any 1 doubt resolved in their favor, Eldridge, 832 F.2d at 1137 , but a plaintiff's claims must be facially 2 plausible to survive screening. Facial plausibility for a claim requires sufficient factual detail to 3 allow the court to reasonably infer that a named defendant is liable for the misconduct alleged. 4 Iqbal, 556 U.S. at 678 . The sheer possibility that a defendant acted unlawfully is not sufficient to 5 state a claim, and mere consistency with liability falls short of satisfying the plausibility standard. 6 See Id.; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 7 Prior to dismissal, the court is to tell the plaintiff of deficiencies in the complaint and 8 provide an opportunity to cure––if it appears at all possible the defects can be corrected. See 9 Lopez, supra, 203 F.3d at 1130-31 . However, if amendment would be futile, no leave to amend 10 need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 11 III. Discussion 12 Plaintiff asserts diversity jurisdiction under 28 U.S.C. § 1332 and alleges four state law 13 claims in her complaint. (ECF No. 1 at 2.) As detailed below, the Court finds jurisdiction is 14 proper but will provide Plaintiff leave to file an amended complaint due to a failure to state her 15 state law claims. 16 A. Diversity Jurisdiction 17 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Insurance Co. 18 Of America, 511 U.S. 375, 377 (1994). In general, federal courts hear cases that arise in diversity 19 or present a federal question. See U.S. CONST. art. III §§ 1–2; 28 U.S.C. §§ 1331-32 . 20 Federal district courts have “have original jurisdiction of all civil actions where the matter 21 in controversy exceeds the sum or value of $75,000, ... and is between ... citizens of different 22 States....” 28 U.S.C. § 1332 . The presumption is against jurisdiction and “the burden of 23 establishing the contrary rests upon the party asserting jurisdiction.” Vacek v. U.S. Postal Serv., [24] 447 F.3d 1248, 1250 (9th Cir. 2006) (citing Kokkonen, 511 U.S. at 377 ). “If the court determines 25 at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. 26 Civ. P. 12(h)(3); see Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 27 1981) (court may dismiss an action sua sponte for lack of jurisdiction). 28 Here, Plaintiff alleges diversity in citizenship between the parties and pleads an amount in 1 controversy that exceeds $75,000. 28 U.S.C. § 1332 . Accordingly, the Court finds jurisdiction is 2 appropriate at this juncture. 3 B. The Complaint is Conclusory and Lacks Specificity 4 The complaint does not contain sufficient factual allegations to state a valid state law 5 claim. In order to state a claim for relief, a plaintiff must link the defendant to the harm suffered 6 by setting forth the specific actions or omissions of the defendant that plausibly shows defendant 7 is liable for the alleged violations. Plaintiff's legal conclusions about the defendant’s conduct does 8 not suffice to state a claim because legal conclusions are not taken as true in the same way that 9 well-pleaded factual allegations are taken as true. 10 Although the complaint must be dismissed, Plaintiff will be granted leave to file an 11 amended complaint with additional factual allegations. See Lucas v. Dep't of Corr., 66 F.3d 245 , 12 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure the defect... a pro 13 se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to 14 dismissal of the action.”). Accordingly, the Court provides the following legal standards and 15 explanation. 16 State Law Claim for Medical Malpractice 17 Plaintiff alleges Defendant committed medical malpractice by attempting to intubate her 18 during her surgery despite being informed that Plaintiff could not be intubated resulting in 19 Plaintiff’s mouth to be damaged. (ECF No. 1 at 2-3.) Pursuant to California law, “[t]he elements 20 of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and 21 diligence as other members of the profession commonly possess and exercise; (2) a breach of the 22 duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) 23 resulting loss or damage.” Chakalis v. Elevator Solutions, Inc., 205 Cal. App. 4th 1557 , 1571 24 (2012); Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). Plaintiff’s allegations of 25 Defendant’s conduct is conclusory and fails to demonstrate sufficient facts to state a cognizable 26 claim. Even under a liberal construction of the complaint, however, the Court may not supply 27 essential elements of a claim not pleaded by the plaintiff. Bruns v. Nat'l Credit Union Admin., 122 28 F.3d 1251, 1257 (9th Cir. 1997). As a result, this claim will be dismissed with leave to amend. 1 State Law Claim for Medical Battery 2 Plaintiff realleges the same allegations as her prior claim as basis to assert a claim for 3 medical battery. (ECF No. 1 at 4-5.) “A typical medical battery case is where a patient has 4 consented to a particular treatment, but the doctor performs a treatment that goes beyond the 5 consent.” Conte v. Girard Orthopaedic Surgeons Med. Grp., Inc., 107 Cal. App. 4th 1260 , 1267 6 (2003). The California Supreme Court “has made it clear that battery and lack of informed 7 consent are separate causes of action. A claim based on lack of informed consent—which sounds 8 in negligence—arises when the doctor performs a procedure without first adequately disclosing 9 the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor 10 performs a procedure without obtaining any consent.” Saxena v. Goffney, 159 Cal. App. 4th 316 , 11 324 (2008). Here, Plaintiff does not allege that she consented to a certain procedure by Defendant 12 in which thereafter Defendant performed another type of procedure without her consent. Given 13 the allegations are identical to her claim for medical malpractice, this claim appears to be 14 duplicative of her claim for medical malpractice. This claim will be dismissed with leave to 15 amend but Plaintiff is cautioned that failure to allege specific facts that relate to this claim may 16 warrant dismissing this claim as duplicative. 17 State Law Claim for Intentional Infliction of Emotional Distress 18 Plaintiff alleges a claim for emotional distress which the Court will construe as a claim for 19 intentional infliction of emotional distress. (ECF No. 1 at 4.) Plaintiff alleges Defendant’s attempt 20 to intubate her during her surgery has led her to be “fearful of any further medical procedures.” 21 (Id.) Pursuant to California law, “[a] cause of action for intentional infliction of emotional distress 22 exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of 23 causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s 24 suffering severe or extreme emotional distress; and (3) actual and proximate causation of the 25 emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ 26 when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ 27 And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization 28 that injury will result.’ ” Hughes v. Pair, 46 Cal.4th 1035,1050-1051 (2009). Here, Plaintiff has 1 not alleged elements for intentional infliction of emotional distress. Plaintiff fails to allege 2 Defendant’s conduct had the intent to cause or was with reckless disregard of the probability of 3 causing emotional distress. Therefore, this claim will be dismissed with leave to amend. 4 State Law Claim for Elder Abuse 5 Plaintiff alleges “Elder Abuse” as a cause of action but does not identify a governing legal 6 authority. (Id. at 4.) Pursuant to the California Elder Abuse Act found in sections 15600 et seq. 7 “[the] Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, 8 i.e., a ‘person residing in this state, 65 years of age or older.’ (Welf. & Inst.Code, § 15610.27.) In 9 particular, a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is 10 liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and 11 that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of 12 such abuse may recover attorney fees and costs. (Id., § 15657, subd. (a).) Worsham v. O'Connor 13 Hosp., 226 Cal. App. 4th 331, 336 (2014). Although Plaintiff alleges she is 78 years old, she fails 14 to allege facts sufficient to show Defendant acted with “recklessness, oppression, fraud, or 15 malice” when he attempted to intubate Plaintiff during her surgery. (ECF No 1 at 4.) As a result, 16 this claim will be dismissed with leave to amend. 17 C. Guidelines for an Amended Complaint 18 The complaint must be dismissed because it does not state a valid claim for relief. 19 Because it is not absolutely clear that no amendment could cure the defect, Plaintiff is granted 20 leave to file an amended complaint. See Lucas, 66 F.3d at 248 . If Plaintiff elects to file an 21 amended complaint, it shall be captioned “First Amended Complaint” and shall contain a “short 22 and plain statement” of the claim[s] showing the basis on which Plaintiff is entitled to relief. Fed. 23 R. Civ. P. 8(a). In order to state a claim, Plaintiff must allege with some degree of particularity 24 the specific acts each defendant engaged in that support Plaintiff's claims. See Jones v. 25 Community Redev. Agency, 733 F.2d 646 , 649 (9th Cir. 1984). 26 Finally, Plaintiff is informed that Local Rule 220 requires that an amended complaint be 27 complete in itself without reference to any prior pleading. Therefore, in any amended complaint, 28 as in an original complaint, each claim and the involvement of each defendant must be 1 | sufficiently alleged. 2] IV. Conclusion 3 In accordance with the above, IT IS HEREBY ORDERED: 4 1. Plaintiffs request to proceed in forma pauperis (ECF No. 2) is granted; 5 2. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend; and 6 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 7 complaint that complies with the requirements of the Federal Rules of Civil Procedure 8 and the Local Rules of Practice; the amended complaint must bear the docket number 9 assigned this case and must be labeled “First Amended Complaint”; failure to file an 10 amended complaint in accordance with this order will result in a recommendation that 11 this action be dismissed. 12 || Dated: June 7, 2024 fed) / dha ANG fe □□□ -AGeo 8 CAROLYNK.DELANEY 14 UNITED STATES MAGISTRATE JUDGE [16] 17 || 4, lope0s70.24