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Terry v. McBride

September 28, 2009

WILLIAM TERRY, PLAINTIFF,
v.
CAPT. MCBRIDE, CORRECTIONAL CAPTAIN; LT. HERNANDEZ, CORRECTIONAL LIEUTENANT; PAROLE OFFICER FLORES, CORRECTIONAL OFFICER; CORRECTIONAL OFFICER WILLIAMS, CORRECTIONAL OFFICER; DR. CHOO, MEDICAL DOCTOR; DR. J. RITTER, CHIEF MEDICAL OFFICER; DR. J. HUNT, MEDICAL DOCTOR, DEFENDANTS.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) ADOPTING IN PART THE R&R; (2) GRANTING DEFENDANTS' MOTION TO DISMISS; and (3) DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S PRAYER FOR PUNITIVE DAMAGES.

Before the Court is Magistrate Judge Louisa S. Porter's Report and Recommendation ("R&R") recommending the Court grant in part and deny in part Defendants D. McBride, G. Hernandez, C. Flores, Dr. Choo, Dr. Ritter, and Dr. Hunt's (collectively, "Defendants") Motion to Dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 Plaintiff, an inmate currently incarcerated at the California State Prison in Chino, California, and proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. After a thorough review of all papers and supporting documents, this Court ADOPTS IN PART the R&R, GRANTS Defendants' motion to dismiss, and DENIES Defendants' motion to strike Plaintiff's prayer for punitive damages.

Factual Allegations

At the time in question, Plaintiff was incarcerated at Donovan State Prison ("Donovan"). (FAC at 2.) On December 13, 2003, Plaintiff was placed in Donovan's Administrative Segregation Unit ("ASU"). (Id. at 3.) Plaintiff alleges he has a medical condition that causes seizures and which is documented in his prison medical records. (Id.) Plaintiff also claims he has a "Medical Chrono" ordering him to be housed only on a lower tier/lower bunk due to his medical condition.*fn2 (Id.)

Plaintiff claims that, upon entering the ASU, he informed Defendants C. Flores and Williams of his medical condition. (FAC at 3.) Plaintiff alleges Defendants Flores and Williams stated "if [Plaintiff] couldn't produce the Documentation [sic], they would not do anything about it." (Id.) Plaintiff claims he could not produce this medical documentation because it was not in his possession when he entered the ASU and because inmates were not allowed personal property in this unit. (Id.; Doc. No. 17 at 2.) Plaintiff claims Defendants Flores and Williams refused to check his medical file to verify the medical order and then inappropriately housed him on an upper bunk. (FAC at 3.) Finally, Plaintiff claims that, despite verification of his medical condition by Medical Technical Assistants at Donovan and receipt of this verification by Defendants Flores and Williams, he was nonetheless kept on the top bunk. (FAC at 3.)

Plaintiff claims that, although he appealed to Defendant Hernandez, the immediate supervisor to Defendant Flores and Defendant Williams, Defendant Hernandez refused to verify Plaintiff's medical condition and stated he could do nothing until Plaintiff personally produced medical records documenting his condition and the related medical order. (FAC at 3.) Plaintiff alleges he subsequently appealed to Defendant McBride, Defendant Hernandez's direct supervisor, and received an identical response. (Id.) Plaintiff states he remained on a top bunk in violation of the medical order from December 13, 2003 to January 18, 2004. (Id.)

On January 14, 2004, Plaintiff suffered a seizure and fell from a top bunk. (FAC at 3.) Plaintiff was then transported to Donovan's medical department and examined by Defendant Choo. (Id. at 4.) Plaintiff claims Defendant Choo prescribed Plaintiff pain medication, assured Plaintiff the injuries would heal "on their own," and did not wrap Plaintiff's ribs. (Id.) Plaintiff alleges that, at that visit, Defendant Choo responded to Plaintiff's complaint of "severe pain" by stating she would monitor the injury's progress but ignored Plaintiff's plea for "more adequate treatment." (Id.)

On February 19, 2004, Plaintiff made a follow-up visit to Defendant Ritter. (FAC at 4.) During the visit, x-rays of Plaintiff's injuries were taken and Plaintiff informed Defendant Ritter of ongoing, severe pain. (Id.) Plaintiff states Defendant Ritter denied Plaintiff's request to see a specialist and "refused to administer any further treatment." (Id.)

On March 19, 2004, Plaintiff made a follow-up visit to Defendant Hunt, during which x-rays were taken. (FAC at 4.) At this visit, Plaintiff informed Defendant Hunt he continued to experience severe pain and requested a referral to a specialist. (Id.) Plaintiff claims Defendant Hunt assured him his "ribs were healing properly" and declined to refer Plaintiff to a specialist. (Id.)

On February 23, 2005, a doctor in Donovan's medical department (Dr. Giannini, not a Defendant in this action) referred Plaintiff to a thoracic surgeon. (FAC at 4.) Plaintiff states this referral came after "almost a full year of enduring constant severe pain." (FAC at 4.) On April 27, 2005, Dr. Howden, a thoracic specialist, examined Plaintiff and made three conclusions: (1) Plaintiff had a "posterolateral fracture of the ninth rib, with incomplete union"; (2) Plaintiff had a "non-union of the tenth rib, with bony sclerotic margin and posterior protuberance"; and (3) "there [was] a displaced fracture of the eleventh rib posterolaterally with non-union" and "the fracture fragment [was] displaced." (Id.)

Procedural History

Plaintiff filed his initial complaint, pursuant to 28 U.S.C. § 1983, on December 17, 2007. [Doc. No. 1.] On May 6, 2008, Plaintiff filed a First Amended Complaint. [Doc. No. 6.] On November 10, 2008, Defendants filed a Motion to Dismiss and to Strike Plaintiff's First Amended Complaint. [Doc. No. 15.] On November 24, 2008, Plaintiff filed a Motion of Objection to Defendant's Motion for Dismissal ("Opposition"). [Doc. No. 17.] On December 18, 2008, Defendants filed a Reply to Plaintiff's Motion of Objection to Defendant's Motion for Dismissal ("Reply"). [Doc. No. 18.]On July 6, 2009, Judge Porter issued an R&R recommending Defendants' Motion be granted in part and denied in part. [Doc. No. 20.] Plaintiff's Objections to the R&R ("Objections")were filed nunc pro tunc to July 31, 2009. [Doc. No. 22.]

Legal Standard

I. Motion to Dismiss Under Rule 12(b)(6)

A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A court may dismiss a claim only when "a plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). The court hearing the motion must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and the court must construe the complaint in the light most favorable to the plaintiff. N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

In addition, when resolving a motion to dismiss for failure to state a claim, the court "may not look beyond the complaint." Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1988) (emphasis in original). New allegations in a plaintiff's opposition motion "are irrelevant for 12(b)(6) purposes." Id. (internal citations omitted). The court may, however, consider documents or exhibits "whose contents are alleged in a complaint and whose authenticity no party questions." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (overruled on other grounds by Galbraith v. Santa Clara, 307 F.3d 1119 (9th Cir. 2002)).

A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for the relief sought . . . ." Fed. R. Civ. P. 8(a); see Bureerong v. Uvawas, 922 F. Supp. 1450, 1480 (C.D. Cal. 1996).Rule 9(b) of the Federal Rules of Civil Procedure 9(b) states "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." FED. R. CIV. P. 9(b); see Bureerong, 922 F. Supp. at 1480; see also Pease & Curren Refining, Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 949 (C.D. Cal. 1990) (implicitly overruled on other grounds by Stanton Road Associates v. Lohrey Enterprises, 984 F.2d 1015 (9th Cir. 1993)). However, "the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual content," and a plaintiff may not "plead the bare elements of his cause of action . . . and expect his complaint to survive a motion to dismiss." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1954 (2009).

II. Reviewing a Magistrate Judge's R&R

The duties of the district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) and 28 U.S.C. § 636(b)(1). See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005); see United States v. Raddatz, 447 U.S. 667, 676 (1980).

When no objections are filed, the Court may assume the correctness of the Magistrate Judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).

III. Pro Se Litigant

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983). "The Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotations and citations omitted).

Where a pro se litigant's claim is dismissed for failure to state a claim, leave to amend should be granted unless "it is absolutely clear that the deficiences of the complaint could not be cured by amendment." Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) ...


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