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Latimer v. Kolender

November 23, 2009


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Defendant Alicia Balcita, erroneously sued as Balcita Abalcish, moves to dismiss Plaintiff's Fourth Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff did not file an opposition to the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, and based upon Plaintiff's failure to file an opposition or statement of non-opposition as required by L.R. 7.1(e)(2), the motion to dismiss is granted.


On November 9, 2005 Plaintiff commenced this civil rights action alleging that Defendants were deliberately indifferent to his serious medical needs during his incarceration at the George Bailey Detention Facility from August 2004 to January 2005. (FAC at p.9). Plaintiff's FAC is based upon the following allegations.

Plaintiff alleges that he suffers from several medical conditions consisting of deep vein thrombosis, complications of brawny edema, a stasis ulcer, and venous insufficiency. (FAC at p.5). His medical conditions allegedly cause swollen extremities and he is prone to blood clots. Id. Plaintiff takes several medications for his medical conditions. Id. He has suffered three previous pulmonary embolisms. Id.

Plaintiff was arrested on August 20, 2004 and transported to the San Diego County Jail. As a part of the booking process, Plaintiff was interviewed by a nurse, Defendant Beverly Orr. Plaintiff informed her that he suffered from deep vein thrombosis, a stasis ulcer, his swollen legs were tender and painful, he was having difficulty breathing and feeling lethargic. Id. at p.6. He also informed Defendant Orr that he had not been taking care of himself and that he had not taken his medications for several days. Id. Defendant Off then ordered Plaintiff placed in a holding cell. Plaintiff alleges that established protocol called for her to make sure that he was "immediately seen by medical staff," and that she deliberately ignored the protocols. Plaintiff alleges that the failure to obtain immediate medical attention resulted in permanent harm, including shortness of breath, painful swelling in his legs, an increase in the size of his stasis ulcer, loss of feeling in three toes, short-term memory loss, and emotional distress. Id. at p. 15.

After being moved to several different holding cells and after about 12 hours from the time of admission, he was sent to the Central Infirmary. Id. at p.7. While in the infirmary he was seen by a nurse and two doctors, he explained his medical conditions, and told them that he believed that he was having a pulmonary embolism. "During this time I was never given a medical exam including exrays (sic), ultra sound, and a CAT scan, all of which are standard procedures for treating someone with my condition." Id. He was then returned to a holding cell

After a period of time, he spoke with the Classification and Housing Sergeant and told him that he "needed immediate attention because [he] was on conscious (sic) for extended periods of time and was having difficulty breathing." Id. His request to be housed in the Infirmary was denied. Instead, Plaintiff was placed with the general population. Within a day or two he received further medical attention.

Based upon the above generally described conduct, Plaintiff alleges that Defendants violated his right to adequate medical care and thereby subjected him to cruel and unusual punishment in violation of the Eighth Amendment.


Legal Standards

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, __550 U.S. __, 127 S.Ct. 1955 (2007) (the complaint's allegations must "plausibly suggest[]" that the pleader is entitled to relief); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences ...

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