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Reyes v. Brown

United States District Court, S.D. California

April 4, 2017

PEDRO REYES, Plaintiff,
v.
EDMUND G. BROWN, JR., DR. ROGELIO ORTEGA, RAY MADDEN, JOHN DOE CORRECTIONAL OFFICERS 1 THROUGH 5, JOHN DOE CORRECTIONAL SERGEANT, AND NURSE BELTRAN, Defendants.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED [ECF NOS. 39, 53]

          Hon. Barbara L. Major United States Magistrate Judge.

         This Report and Recommendation is submitted to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3(f) of the United States District Court for the Southern District of California. For the following reasons, the Court RECOMMENDS that Defendants' motions to dismiss be GRANTED.

         PROCEDURAL BACKGROUND

         On January 5, 2016, Plaintiff Pedro Reyes, a state prisoner proceeding pro se and in forma pauperis, filed a complaint under the Civil Rights Act, 42 U.S.C. § 1983, against Defendants Brown, Ortega, and Madden. ECF No. 1 ("Comp."). Plaintiff alleged claims under the Eighth and Fourteenth Amendments. Id., at 3-18. On April 25, 2016, Defendants filed a Motion to Dismiss the Complaint for Failure to State a Claim for which Relief May be Granted. ECF No. 19-1. After granting two requests from Plaintiff to continue his deadline for opposing Defendants' motion [see ECF Nos. 22-26], Plaintiff timely filed his opposition [ECF No. 28].

         On July 25, 2016, Plaintiff filed a "REQUEST FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT" and "PLAINTIFF'S SECOND MOTION FOR THE APPOINTMENT OF COUNSEL BASED ON PRIOR ARGUMENT AND A RECENT THREAT TO AN INMATE ASSISTANT" that were accepted by the Court on discrepancy on August 2, 2016. ECF Nos. 29-32. On August 15, 2016, Defendants filed a response indicating that they did not oppose the motion to file a first amended complaint [see ECF No. 35] and the Court took the matter under submission. On August 26, 2016, District Judge Sammartino granted Plaintiff's motion to file a first amended complaint and denied as moot Defendants' motion to dismiss. ECF No. 36.

         On July 25, 2016, Plaintiff filed the operative First Amended Complaint under the Civil Rights Act, 42 U.S.C. § 1983, alleging violations of the Eighth Amendment against Defendants Madden, Ortega, Beltran, and John Does 1 through 6. ECF No. 37 ("FAC"). On October 5, 2016, Defendants Madden and Ortega filed a Motion to Dismiss for Failure to State a Claim for Which Relief May be Granted. ECF No. 39-1 fMTD 1").

         On October 25, 2016, Plaintiff filed a letter requesting the appointment of counsel, or in the alternative, more time to file his opposition. ECF No. 44; see also ECF No. 45. On November 4, 2016, the Court issued an order denying Plaintiff's motion for the appointment of counsel and granted Plaintiff's motion to extend the deadline to file an opposition to Defendants' motion to dismiss. ECF No. 45. On November 15, 2016, Plaintiff filed a motion to appoint counsel and requested the case be stayed until the Court rules on the motion to appoint counsel. ECF No. 48. On November 30, 2016, the Court denied Plaintiff's motion to appoint counsel and denied as moot Plaintiff's motion to stay. ECF No. 49.

         On December 12, 2016, Plaintiff filed a second motion for an extension of time to file an opposition to Defendants' motion to dismiss. ECF No. 51. The Court granted Plaintiff's motion and ordered Plaintiff to file his opposition on or before January 12, 2017, and Defendants to file their reply on or before February 6, 2017. ECF No. 52. On January 3, 2017, Plaintiff timely filed his opposition. ECF No. 55 ("Oppo. 1"). Defendants did not file a reply. See Docket.

         On December 21, 2016, Defendant Beltran filed a motion to dismiss Plaintiff's First Amended Complaint for failure to state a claim for which relief may be granted. ECF No. 53-1 ("MTD 2"). On January 24, 2017, Plaintiff filed his opposition [ECF No 56 ("Oppo. 2")]. Defendants did not file a reply. See Docket.

         COMPLAINT ALLEGATIONS

         Because this case comes before the Court on a motion to dismiss, the Court must accept as true all material allegations in the complaint, and must construe the complaint and all reasonable inferences drawn therefrom in the light most favorable to Plaintiff. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

         According to the First Amended Complaint, Plaintiff (1) was forced to endure unsafe prison conditions, (2) was denied adequate medical care, and (3) suffered cruel and unusual punishment. FAC. Plaintiff alleges that in order to move around the D-Yard prison facility where he is housed to get breakfast and dinner or to exercise (jog, walk, run etc.), he is required to walk on a specific track. FAC at 3. The track, however, is in a severely dangerous condition and is comprised of sharp, jagged rocks that protrude from various angles, wide cracks, and random indentations. Id. Due to the state of the path, it is difficult for people using the path to maintain their balance and it is likely that anyone who falls on the path will "turn an ankle in." I<± Plaintiff alleges that the poor condition of the track caused him to trip and fall while jogging around the path on March 11, 2015. Id. The fall caused Plaintiff to strike his head and neck on the asphalt, lose consciousness for approximately two to three minutes, injure his shoulder and neck, and suffer several scrapes and bruises. Id., Plaintiff alleges that Defendant Madden, acting in his individual and official capacity as Warden, was aware of the unsafe condition of the path, failed to repair the path, and implemented a policy permitting the track to be fixed only with requested funds from Sacramento when he knew those requests were being ignored. Id. at 3, 35. Plaintiff further alleges that Defendant Madden could have used inmate labor or funds intended to be used for less serious issues to fix the track. Id. at 3. Plaintiff alleges that the handling of the dangerous path violated his Eighth Amendment rights and that he was subjected to "dangerous prison conditions." Id., With respect to his cruel and unusual punishment claims, Plaintiff alleges that when he initially fell and lost consciousness on March 11, 2015, none of the correction officers supervising the yard offered Plaintiff assistance.[1] I<±at4. Plaintiff also alleges that the correctional Sergeant supervising the correction officers failed to ensure Plaintiff's safety.[2] Id. Instead, other inmates carried him to the medical clinic. Id. Plaintiff alleges that the officers' failure to assist Plaintiff constitutes cruel and unusual punishment. Id.

         Plaintiff also alleges that he failed to receive adequate medical care from March 11, 2015 to June 22, 2015. See Id., at 5-7. After the inmates carried Plaintiff to the medical clinic, Nurses Pacheco and Johnson cleaned Plaintiff's superficial wounds. Id. at 5. Plaintiff told them that he was in severe pain. Id. Nurses Pacheco and Johnson sent Plaintiff to see Defendant Nurse Beltran.[3] Id. Nurse Beltran prescribed Plaintiff 600mg of Ibuprofen for pain, and told Plaintiff to put in a medical request if he wanted to see the doctor. Id. Plaintiff's pain continued to increase and he was seen by Defendant Doctor Ortega "[a] few days after Plaintiffs fall." Id. at 6. Defendant Ortega allegedly "continuously down played Plaintiff's pain" and "ignored Plaintiff when [he] said that 600mg of []lbuprofen did nothing for the pain." Id. Plaintiff alleges that Defendant Ortega accused Plaintiff of faking his injuries. Id. Defendant Ortega told Plaintiff he would have x-rays taken of Plaintiff's shoulder and spine. Id. However, Plaintiff alleges that he "does not know if these x-rays took place." Id.

         Plaintiff alleges his medical records indicate that three x-rays were taken of his shoulder and spine on April 6, 2015 and April 20, 2015, but that the x-ray technicians did not replace the x-ray film after taking the first x-rays. Id., at 6, 18, 20. Plaintiff alleges that had Defendant Ortega actually taken x-rays, he would have seen Plaintiff's injury. Id. at 6. After the x-rays and Plaintiff's continued complaints of pain, Defendant Ortega sent Plaintiff to get a cervical spine MRI on May 29, 2015. Id. at 7, 22. The MRI indicated that Plaintiff needed emergency surgery to place a steel rod in his neck.[4] Id., at 7. On June 22, 2015, Plaintiff underwent a non-complicated C4-C5 ACDF surgery with Dr. Berman for a traumatic C4-C5 herniated disk with myelopathy. Id., at 58. Plaintiff alleges that Defendant Ortega was deliberately indifferent when he deprived Plaintiff of adequate medical care for over three months between the date of Plaintiff's fall and the date of the surgery. Id. at 2, 6.

         LEGAL STANDARD

         Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the plaintiff's claims. See Fed.R.Civ.P. 12(b)(6). The issue is not whether the plaintiff ultimately will prevail, but whether he has properly stated a claim upon which relief could be granted. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). In order to survive a motion to dismiss, the plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). If the facts alleged in the complaint are "merely consistent with" the defendant's liability, the plaintiff has not satisfied the plausibility standard. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather, "[a] claim has facial plausibility when the [plaintiff] plead[s] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         When a plaintiff appears pro se, the court must be careful to construe the pleadings liberally and to afford the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). This rule of liberal construction is "particularly important" in civil rights cases. Hendon v. Ramsey, 528 F.Supp.2d 1058, 1063 (S.D. Cal. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (stating that because "Iqbal incorporated the Twombly pleading standard and Twombly did not alter the courts' treatment of pro se filings; accordingly we continue to construe pro se filings liberally . . . ." This is particularly important where the petitioner is a pro se prisoner litigant in a civil matter). When giving liberal construction to a pro se civil rights complaint, however, the court is not permitted to "supply essential elements of the claim[] that were not initially pled." Easter v. CDC, 694 F.Supp.2d 1177, 1183 (S.D. Cal. 2010) (quoting 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." I<± (quoting Ivey, 673 F.2d at 268).

         The court should allow a pro se plaintiff leave to amend his or her complaint, "unless the pleading could not possibly be cured by the allegation of other facts." Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (internal quotation marks and citations omitted). Moreover, "before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Ferdik, 963 F.2d at 1261.

         To state a claim under § 1983, a plaintiff must allege facts sufficient to show that (1) a person acting under color of state law committed the conduct at issue, and (2) the conduct deprived the plaintiff of some "rights, privileges, or immunities" protected by the Constitution of the laws of the United States. 42 U.S.C. § 1983. To prevail on a § 1983 claim, "a plaintiff must demonstrate that he suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of the defendant." Harris v. Schriro, 652 F.Supp.2d 1024, 1034 (D. Ariz. 2009) (citation omitted). A particular defendant is liable under § 1983 only when the plaintiff proves he participated in the alleged violation. Id.

         I. MOTION TO DISMISS - DEFENDANTS MADDEN AND ORTEGA

         Plaintiff alleges that he was forced to endure unsafe prison conditions, denied adequate medical care, and suffered cruel and unusual punishment in violation of his Eighth Amendment rights. FAC. Plaintiff seeks (1) an injunction preventing Defendant Ortega from acting as his care provider, (2) damages to be determined by the court or a jury, (3) punitive damages in a sum to be determined by the court or a jury, and (4) special damages for any lost future wages and pre-judgment interest on all monetary awards. Id., at 9.

         Defendants move to dismiss Plaintiff's claims against Defendants Madden and Ortega on the ground that Plaintiff's First Amended Complaint fails to state a claim for relief under the Eighth Amendment. MTD 1.

         A. Eighth Amendment Deliberate Indifference to Safety Claim Against Defendant Madden

         Plaintiff alleges that Defendant Madden violated his Eighth Amendment right to be free from dangerous prison conditions by knowingly failing to fix the dangerous condition of the track which caused Plaintiff to trip and fall while running. FAC at 3. In response, Defendants state that "Plaintiff's conclusory allegations fail to state an Eighth Amendment deliberate-indifference-to-safety claim against Warden Madden." MTD 1 at 12.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A prisoner may state a section 1983 claim under the Eighth Amendment against prison officials where the officials acted with "deliberate indifference" to the threat of serious harm. Leach v. Drew, 385 F.App&#39;x. 699-701 (9th Cir. 2010) (citing Berg v. Kincheloe, 794 F.2d 457, 459, 460-61 (9th Cir. 1986); Robins v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001)). To assert an Eighth Amendment claim based on conditions of confinement, a prisoner must satisfy two requirements: one objective and one subjective. SeeFarmer v. Brennan, 511 U.S. 825, 834 (1994). Under the objective requirement, "the prison official&#39;s acts or omissions must deprive an inmate of the minimal civilized measure of life&#39;s necessities." Id; seealso Matthews v. Holland, 2016 WL 3167568, at *2 (E.D. Cal. June 6, 2016). Under the subjective requirement, the prisoner must allege facts which demonstrate that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk ...


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