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De La Garza-Montemayor v. Hassoun

United States District Court, W.D. Oklahoma

January 7, 2019

DE LA GARZA-MONTEMAYOR, EMILIO, Plaintiff,
v.
DR. HASSOUN, M.D., et al., Defendants.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state inmate proceeding in forma pauperis, filed a Complaint under 42 U.S.C. § 1983 alleging deliberate indifference, medical malpractice, medical negligence, and excessive force. [Doc. No. 1]. Chief United States District Judge Joe Heaton has referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that the Court summarily dismiss all but Plaintiff's excessive force claim and deny supplemental jurisdiction over any state-law medical claims.

         I. Plaintiff's Claims

         A. Plaintiff's Medical Claims

         Plaintiff alleges that on July 25, 2017, he was transferred from the Great Plains Correctional Facility (GPCF) to Mercy Hospital in Oklahoma City, Oklahoma for a “‘[p]artial [e]pididymectomy'” to remove a cyst from his left testicle. Compl. at 8.[1] Defendant Dr. Basel Hassoun, M.D., performed the procedure, and according to Plaintiff, entirely removed Plaintiff's left testicle and an artery, leaving him with pain, complications, and deformities in his testicle and penis. See Id. Plaintiff claims he never gave consent for the removal of his testicle and he sues Dr. Hassoun and Defendant Mercy Hospital/HPI Northwest Surgical Hospital (Mercy Hospital) for medical malpractice and negligence. See Id. at 8-9. Plaintiff likewise sues Defendants Dr. Ray, [2] the GPCF Heath Service Administrator, and Ms. Carla Dicke, a GPCF medical coordinator, for negligence, alleging they had a duty to communicate to Dr. Hassoun that Plaintiff had not authorized the removal of his testicle. See Id. at 9-10.

         Invoking the Eighth Amendment, Plaintiff sues Defendant Farley, the GPCF Warden, and Defendant Rogers, the GPCF Administrative Remedy Coordinator, because they denied his grievance when he sought corrective surgery. See Id. at 10. Finally, Plaintiff sues Defendant GEO Group, Inc., GPCF's corporate owner, alleging that it “failed to provide adequate proper medical care.” Id.

         B. Plaintiff's Excessive Force Claim

         Plaintiff also alleges that on July 9, 2017, during a “riot at GPCF, ” Defendant Correctional Officer Wayztak “hit him with a grenade even though [Plaintiff] was following all orders and . . . was no danger to anybody.” Id. at 10. Plaintiff alleges the “entire skin around his penis was destroyed aggravating already existing conditions.” Id. Plaintiff claims Defendant Wayztak used excessive force and accuses GEO Group, Inc. of failing “to protect [Plaintiff] from assault from its staff.” Id.

         II. Screening

         Because Plaintiff is proceeding in forma pauperis, the Court has a duty to screen the Complaint and dismiss any portion that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).

         Mirroring a Fed.R.Civ.P. 12(b)(6) review, the Court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to him. See Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010).

         III. Defendant Dr. Hassoun

         The Court should first dismiss Defendant Dr. Hassoun on two alternate grounds.

         A. Failure to Allege Action ...


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