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Johnson v. Torres

United States District Court, E.D. California

June 22, 2016

RYAN JAMES JOHNSON, Plaintiff,
v.
M. TORRES, et al., Defendants.

          FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED [ECF No. 12, 15, 16]

         Plaintiff Ryan James Johnson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States magistrate judge jurisdiction on December 9, 2015. (ECF No. 9.) Defendants declined United States magistrate judge jurisdiction, therefore, this action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. (ECF No. 13.)

         Currently before the Court is Defendants' motion to dismiss, filed February 9, 2016.

         I. RELEVANT BACKGROUND

         This action is proceeding against Defendants M. Torres and C. Sekula for violation of Plaintiff's right to physical safety under the Eighth Amendment of the United States Constitution.

         On February 9, 2016, Defendants filed a motion to dismiss the complaint for failure to state a cognizable claim for relief or in the alternative for qualified immunity. (ECF No. 12.) Plaintiff filed an opposition on February 25, 2016, and Defendants filed a reply on March 3, 2016. (ECF Nos. 15, 16.)

         II. DISCUSSION

         A. Motion to Dismiss Standard

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

         To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         Defendants argue that the Court should dismiss Plaintiff's complaint because (1) Plaintiff fails to state a cognizable claim against either Defendant; (2) Plaintiff has not constitutional right to a grievance hearing; (3) Defendants are entitled to qualified immunity; and (4) Plaintiff's claim is barred by the holdings in Heck v. Humphrey and Edwards v. Balisok.

         B. Complaint Allegations [1]

         In August 2005, Plaintiff suffered a fractured clavicle bone as a result of a sports injury. As a result, Plaintiff retains a sharp, fully-fractured clavicle bone in his right shoulder region.

         The left interior portion of this bone visibly protrudes, underneath the skin, from out of his right shoulder. The right exterior portion of this bone, sharply hued from diagonal fracture, remains floating within his muscle mass and tendons. As a result, repetitive lateral and orbital movements cause the right exterior bone to stab into his muscle mass, causing Plaintiff debilitating and significant pain. This injury has been deemed a permanent disability by administrative health staff at the California Department of Corrections and Rehabilitation. The disability does not, however, render Plaintiff incapable of lateral or rotated movement, but when subjected to such actions, the pain commences.

         In October 2011, a CDCR 7410 Comprehensive Accommodation Chrono was rendered and physical limitations to work assignments was issued which included no pushing, no pulling, and no lifting more than twenty pounds with his right shoulder.

         On April 17, 2014, after a two-week initial processing, Plaintiff was assigned to a dining hall position in E-Facility at California Substance Abuse and Treatment Facility, at Corcoran (SATF). During the initial job processing, Defendant Torres presented Plaintiff without various documents for his signature regarding the terms and conditions of his job assignment in the dining hall. Torres did not provide Plaintiff with a CDCR job description with itemized duties. Plaintiff had doubts as to his ability to adequately perform his duties without experiencing pain. Plaintiff explained his disability to Torres and belief that he would not be able to perform the dining hall duties without experiencing severe pain. Torres scoffed at Plaintiff's concerns and ignored them. At approximately 2:30 p.m., Torres instructed Plaintiff to report to the food service line.

         Plaintiff reported to work and took a place in line, where he was required to scoop more than a thousand portions of food onto plastic trays for ninety minutes without an opportunity for rest. During the ninety minute shift, Plaintiff could feel the jagged point of his fractured clavicle grinding against the interior muscles causing severe pain. Plaintiff advised Torres that the repetitive action was causing him pain but Torres ordered Plaintiff to continue with food service and suggested that Plaintiff try his left arm instead.

         After the last tray was served, Plaintiff approached Torres and explained that his job duties caused him pain and that he needed to be re-assigned to a new job. Torres stated that it was not within his authority to re-assign Plaintiff and then assigned Plaintiff to wet mop the dining hall. Plaintiff informed Torres that mopping the floor would cause him further pain but Torres refused to accommodate him. After Plaintiff finished mopping the floor, he approached Torres for reassignment. Torres stated that he did not believe Plaintiff was in severe pain and told Plaintiff he was capable of performing the tasks. Plaintiff re-iterated that he was capable, but that the repetitive motions caused him pain. Torres stated that the only relief he could provide to Plaintiff was a new assignment in the dining hall which would be more painful for Plaintiff in comparison to his food service line work From April 17, 2014 through April 25, 2014, Plaintiff continued to report to the dining hall for work. Despite Plaintiff asking to be reassigned, Torres refused to submit the proper paperwork. On April 22, 2014, Plaintiff's primary care physician, Dr. Kokor, evaluated him and determined that Plaintiff had significant physical limitations to his job assignment. Dr. Kokor issued a CDCR 7410 Comprehensive Accommodation Chrono specifying that Plaintiff was not allowed to lift more than twenty pounds and was not allowed to engage in repetitive motions with his right arm or shoulder.

         On April 28, 2014, Plaintiff received a copy of the chrono and presented it to Torres when he reported for duty. Instead of accommodating Plaintiff, Torres instructed him to continue with the same painful work routine. Plaintiff filed a CDCR Form 602 appeal. Within thirty days, Plaintiff received an interview with CCII Fisher which included a conference call with Torres about providing Plaintiff with a reasonable accommodation. Fisher explained to Torres that he must reasonably accommodate Plaintiff with a job assignment that is consistent with his physical limitations. Fisher further explained to Torres that if there were no positions which would accommodate Plaintiff, then he would need to issue a CDCR 128B-1 Chrono and refer Plaintiff back to the Classification Committee. Torres acknowledged the instructions and stated he would accommodate Plaintiff. Torres made these statements despite the prior statement that there were no positions available in the dining hall that did not involve repetitive motion of his arms.

         When Plaintiff reported to his assignment in the dining hall, Torres determined he was no longer fit to serve food on the tray line. Instead, Plaintiff was reassigned to "table wiper" and Plaintiff would still be required to sweep or mop the dining hall floor each evening. Plaintiff immediately complained that his new duties were more strenuous than his original food service duties and asked Torres to submit a CDCR 128 to refer him back to the Classification Committee. Torres refused, and Plaintiff was forced to continue working under extreme pain for several months.

         On September 12, 2014, Torres presented Plaintiff with a five-month belated job description form. This document was required to be presented to and signed by Plaintiff at the inception of his position. The document specified the duties he was required to perform in his position. Plaintiff immediately noticed the document had been pre-signed and back-dated by Torres to fraudulently reflect the inception date of his employment (4-17-14) rather than the true date of 9-12-14. Torres committed forgery to protect himself from this lawsuit.

         When Plaintiff questioned Torres about the attempted forgery, Torres became agitated and verbally aggressive stating, "I'm tired of your shit, I know you['re] not disabled, you['re] a fucking liar." He further stated, "I don't believe you are physically unable to perform your agreed duties" and "you can do everything on this job description." He then instructed ...


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