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Thomas v. Rodriguez

United States District Court, S.D. California

March 29, 2018

SAMMY THOMAS, CDCR #F-12551, Plaintiff,
v.
J. RODRIGUEZ, Correctional Officer; P. COLIO, Correctional Officer, Defendants.

          REPORT AND RECOMMENDATION RE DEFENDANTS' MOTION TO DISMISS THIRD AMENDED COMPLAINT [ECF NO. 37]

          Honorable Jan M. Adler United States Magistrate Judge.

         Sammy Thomas (“Plaintiff”), currently incarcerated at California State Prison, Los Angeles County, is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff claims Calipatria State Prison (“CAL”) Correctional Officers Rodriguez and Colio (“Defendants”) violated his Eighth Amendment rights by failing to properly secure him in a seatbelt during a prison transport from CAL to a hospital in Indio, California, for a physical therapy appointment on August 12, 2015. (See Third Amend. Compl. (“TAC”), ECF No. 36 at 3-4.) Defendants have filed a motion to dismiss the TAC. (ECF No. 37.) For the following reasons, the undersigned recommends the motion be GRANTED without leave to amend.

         I. Procedural History

         Plaintiff initiated this action by filing a Complaint on August 29, 2016. (ECF No. 1.) On December 1, 2016, the Court issued an order sua sponte dismissing the complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). (ECF No. 5.) Plaintiff filed a First Amended Complaint on February 6, 2017. (ECF No. 7.) On February 28, 2017, the Court issued an order sua sponte dismissing without prejudice and with leave to amend all claims against all defendants pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), with the exception of Plaintiff's Eighth Amendment claim against Defendants Rodriguez and Colio. (ECF No. 22.) Plaintiff filed a Second Amended Complaint (“SAC”) on April 10, 2017. (ECF No. 23.) On April 13, 2017, the Court directed the U.S. Marshal to effect service of Plaintiff's SAC upon Defendants Rodriguez and Colio pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3). (ECF No. 24). The Court sua sponte dismissed all other claims alleged in the SAC as to all other parties for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (Id.)

         Defendants filed a motion to dismiss the SAC for failure to state a claim for which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 30.) On September 6, 2017, the Court issued an order granting Defendants' motion. (ECF No. 35.) The Court found the SAC did not contain factual allegations to “plausibly suggest Defendants were speeding, or driving ‘recklessly' or ‘erratically' under the circumstances.” (Id. at 9.) The Court stated that “without some additional ‘factual content that allows the court to draw the reasonable inference' that Defendants were acting recklessly and with ‘deliberate indifference' when ‘the van stopped suddenly, '” the SAC failed to state a claim for relief under the Eighth Amendment. (Id. at 10.) The Court granted Plaintiff leave to amend to address the pleading deficiencies identified in the order. (Id. at 12.) The Court cautioned, however, that if Plaintiff's TAC still failed to set forth allegations sufficient to state an Eighth Amendment claim, his case would be dismissed without further leave to amend. (Id.)

         Plaintiff filed his TAC on October 4, 2017. (ECF No. 36.) On October 19, 2017, Defendants filed a motion to dismiss the TAC for failure to state a claim upon which relief can be granted. (ECF No. 37.) Plaintiff filed an opposition on November 15, 2017. (ECF No. 39.) For the reasons discussed below, the Court finds Plaintiff's TAC fails to state an Eighth Amendment claim as to Defendants Rodriguez and Colio, and therefore RECOMMENDS Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) be granted without leave to amend.

         II. Plaintiff's Factual Allegations

         Plaintiff alleges that on the morning of August 12, 2015, Defendants Rodriguez and Colio, both correctional officers at CAL, transported him from CAL to a hospital in Indio, California for a physical therapy appointment relating to an ongoing lower back issue. (See TAC, ECF No. 36 at 3.) Plaintiff contends he was placed in ankle restraints, waist chain restraints, handcuffs, and a device known as a “black box” which locked the handcuffs to the waist chains and allowed “little to no mobility.” (Id.) Plaintiff was placed in the very rear of the transportation van and was unable to fasten his seat belt due to the restraints. Id. Plaintiff claims he asked Defendants, “Are you going to fasten my seatbelt?” to which they replied, “No, you'll be alright.” (Id.) Plaintiff states Defendants closed and locked the rear security door, closed the rear doors of the van, and placed a piece of cardboard in the window of the metal security divider, preventing Plaintiff from being able to see either Defendant, out of the front windshield, or the speedometer. (Id.)

         Plaintiff next alleges:

During transportation while traveling on the 111 freeway the Plaintiff was able to see that the Defendants were passing the other vehicles at a high rate of speed and continuously changing lanes to pass other vehicles [through] the side windows of the transportation van when the Defendants suddenly slammed on the [brakes] causing the Plaintiff to be thrown forward and slam into the metal security divider that separates the Plaintiff from the Defendants. The Plaintiff hit his head and injured his back when he slammed into the metal security divider and complained to the Defendants saying “I am hurt, ” but the Defendants continued to drive to the physical therapy appointment ignoring the Plaintiff's statement.

(Id. at 3-4.)

         Plaintiff contends that upon arrival to the hospital, Defendants opened the back door of the van, unlocked the rear security door, and said, “OK, let's go in.” Plaintiff again stated, “I am hurt, ” to which Defendants replied, “We will have the therapist check you out.” (Id. at 4.) The physical therapist examined Plaintiff, placed an ice pack on his head and lower back for ten minutes, and then asked Plaintiff to complete his physical therapy, which he did with difficulty. (Id.) Defendants then drove Plaintiff back to CAL, this time with a seat belt. (Id.)

         Plaintiff filed an inmate grievance related to the incident that was granted in part. (Id. at 5.) As a result of that grievance, Plaintiff claims the prison admitted Defendants violated departmental policy, but did not identify which policy was violated. (Id.)

         III. ...


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