United States District Court, S.D. California
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]
Barbara L. Major United States Magistrate Judge.
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.
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].
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.
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").
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.
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.
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.
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).
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. I<±at4. Plaintiff also alleges
that the correctional Sergeant supervising the correction
officers failed to ensure Plaintiff's
safety. 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.
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. 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.
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. 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.
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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).
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).
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.
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.
MOTION TO DISMISS - DEFENDANTS MADDEN AND
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.
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.
Eighth Amendment Deliberate Indifference to Safety Claim
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.
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'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's acts or omissions must deprive an
inmate of the minimal civilized measure of life'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 ...