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Oglesby v. McEwen

United States District Court, Ninth Circuit

July 31, 2013

LELAND MCEWEN, et al., Defendants.


MITCHELL D. DEMBIN, Magistrate Judge.


This Report and Recommendation is submitted to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d)(1) of the United States District Court for the Southern District of California. For the reasons set forth herein, the Court RECOMMENDS the Motion To Dismiss be GRANTED.


Jesse Frank Oglesby ("Plaintiff") is a state prisoner currently incarcerated at Lancaster Prison in Lancaster, California. (ECF No. 6). On December 27, 2011, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were violated while he was housed at Calipatria State Prison ("Calipatria") in 2010. (ECF No. 1). On February 21, 2012, the Court granted Plaintiff's motion to proceed in forma pauperis but dismissed the Complaint without prejudice for failure to state a claim upon which relief could be granted. (ECF No. 3). On April 9, 2012, Plaintiff filed a First Amended Complaint. (ECF No. 4). On June 7, 2012, the Court dismissed the First Amended Complaint for failure to state a claim upon which relief could be granted. (ECF No. 5). On July 23, 2012, Plaintiff filed a Second Amended Complaint naming nine defendants. (ECF No. 6). On January 31, 2013, Defendants Perez, Finder, and Ortiz answered. (ECF No. 20). Also on January 31, 2013, Defendants Gray, Belavich, Crow, Banaga-Bugarin, Zamora, and McEwen ("Defendants") moved to dismiss. (ECF No. 21).

After numerous extensions, Plaintiff filed an Opposition to the Motion to Dismiss on May 1, 2013. (ECF No. 33). On May 25, 2013, Plaintiff moved to withdraw his Opposition and requested leave to amend and re-file. (ECF No. 35). The Court granted Plaintiff's motion and set a deadline of June 24, 2013, for Plaintiff to file an amended Opposition. ( Id. ). Plaintiff did not meet this deadline. On July 8, 2013, Plaintiff filed a "Motion for Reconsideration" requesting another extension of the deadline for his amended Opposition. (ECF No. 43). On July 10, 2013, a Mandatory Settlement Conference was held and Plaintiff participated telephonically. No settlement was reached, however the parties used the opportunity to discuss matters before the Court, including Plaintiff's request for an extension. On July 12, 2013, the Court issued an order setting a new deadline of July 26, 2013. (ECF No. 45). In its order, the Court warned Plaintiff that if it did not receive an amended Opposition by this new deadline, the Court would construe Plaintiff's previously filed Opposition as the operative pleading. ( Id. ). Plaintiff did not meet this deadline. Instead, on July 26, 2013, Plaintiff filed yet another motion to extend the deadline. (ECF No. 50). Due to the numerous deadlines Plaintiff has already missed, the Court is disinclined to grant another extension. Thus, the Court will construe Plaintiff's previously filed Opposition as the operative pleading and take Defendants' Motion to Dismiss under submission. ( See ECF Nos. 33, 45). Plaintiff should note that he has the opportunity to file an objection to this Report and Recommendation within 14 days of being served with a copy. (Fed. R. Civ. P. 72(b)(2)).


The following facts are taken from Plaintiff's Second Amended Complaint and are not to be construed as findings of fact by the Court.

In this civil rights action, Plaintiff makes two claims. First, Plaintiff alleges that the Defendants engaged in cruel and unusual punishment within the meaning of the Eighth Amendment by demonstrating deliberate indifference to his medical needs. (ECF No. 6). Second, Plaintiff alleges that the Defendants conspired to commit this constitutional violation. ( Id. ).

On an unspecified date in 2010, Plaintiff alleges that Defendant Perez, a licensed vocational nurse at Calipatria, provided him the wrong medication in the morning medication line at the "A-Yard Clinic." (ECF No. 6 at 5). Plaintiff claims he was incorrectly provided with another inmate's medication which included doses of Robaxin, Neurontin, Tylenol #3, and Toradol (hereinafter the "medication incident"). ( Id. ). After receiving the medication, Plaintiff returned to his cell. ( Id. ).

Two hours later, a guard allegedly came to Plaintiff's cell and asked him to return to the A-Yard Clinic because he had been "administer[sic] the wrong medication in overdose." ( Id. ). At this time, Plaintiff claims he was feeling sluggish. ( Id. ). Upon returning to the A-Yard Clinic, Plaintiff alleges that Defendant Perez told him he was "high." ( Id. at 6). Plaintiff alleges that Defendant Perez explained that she and her supervisor, Defendant Ortiz, a Registered Nurse at Calipatria, wanted to check Plaintiff's vitals. ( Id. ). Plaintiff alleges that after checking his vitals, Defendant Perez went into an office to speak with Defendant Ortiz. ( Id. ). Plaintiff claims they returned together and again told Plaintiff that he was "high." ( Id. ). Plaintiff alleges that Perez and Ortiz explained they could send him to get his stomach pumped, but they were sure Plaintiff did not want that. ( Id. ). Plaintiff alleges that Perez and Ortiz did not take any additional steps to address Plaintiff's adverse reaction at that time. ( Id. ). Instead, Plaintiff claims he was sent back to his cell. ( Id. ).

After returning to his cell, Plaintiff claims he experienced drowsiness and shortness of breath. ( Id. at 7). At some point thereafter, Plaintiff's cellmate went to the A-Yard Clinic to inform Defendant Perez that Plaintiff was unable to walk, was complaining of drowsiness, and was extremely sleepy. ( Id. ). Prison guards came to help Plaintiff out of his cell and transport him to the "Trauma Center" which appears to be another medical facility at Calipatria. ( Id. ). At the Trauma Center, Plaintiff was seen by Dr. Estock who is not a Defendant in this suit. ( Id. ). Dr. Estock allegedly informed Plaintiff that her supervisor did not want to send him to an outside hospital. ( Id. ). Although Plaintiff does not provide further factual detail, he was presumably treated at the Trauma Center and later released. As a result of the medication incident, and the alleged failure to treat his subsequent overdose, Plaintiff contends he suffers seizures and chronic anxiety. ( Id. ). Plaintiff reports that he continues to suffer from muscle control and speech issues. ( Id. ).

Plaintiff also alleges there was a conspiracy to deny him adequate medical care and to cover up the medication incident altogether. ( Id. ). Plaintiff claims that after the incident, his medical records were altered to falsely reflect he had a history of seizures when, in fact, he did not experience seizures until after the incident occurred. ( Id. ). Specifically, Plaintiff alleges that Defendant Crow, the Chief Medical Executive at Calipatria, conspired to violate his constitutional rights by allowing his medical records to remain incorrect. (ECF No. 6 at 8). Plaintiff also alleges that Defendant McEwen, the Warden of Calipatria, failed to ensure the prison employees provided adequate medical care to prisoners. ( Id. at 7).

Plaintiff claims to have completed the administrative appeal process challenging his treatment. (ECF No. 6). During this process, Plaintiff alleges that the prison appeals staff also conspired to deny him adequate medical care. ( Id. ). The alleged conspiracy consisted of allowing his medical records to incorrectly reflect he had a history of seizures prior to the medication incident. ( Id. at 3). Specifically, Plaintiff alleges that Defendant Banaga-Bugarin, the Health Care Appeals Coordinator at Calipatria, "acted to protect the ongoing conspiracy." ( Id. ). Plaintiff also alleges that Defendant Zamora, the Chief of California Prison Health Care Services for healthcare appeals, participated in the conspiracy when she too allowed his medical records to remain incorrect and failed to find actionable misconduct by other defendants. ( Id. at 8).


A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 ((9th Cir. 2001). Fed.R.Civ.P. 8(a) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99 (1957). However, the Supreme Court has explained that the plain statement' must possess enough heft to show that the pleader is entitled to relief. Twombly, 550 U.S. at 557 (2007). Thus, while specific detail is not required, every complaint must, at a minimum, plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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) (citing Twombly, 500 U.S. at 556).

The court must assume the truth of the facts which are presented and construe all inferences from them in the light most favorable to the non-moving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). A pro se party's pleadings should be construed liberally. Id. However, the court is not required to "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (internal citation omitted). The court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).


Plaintiff's complaint alleges a civil rights violation pursuant to 42 U.S.C. § 1983. (ECF No. 6). Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or ...

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