United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: DEFENDANTS' MOTION TO DISMISS [ECF NO.
Mitchell D. Dembin United States Magistrate Judge.
Report and Recommendation is submitted to United States Judge
Larry Alan Burns pursuant to 28 U.S.C. § 636(b)(1) and
Local Civil Rule 72.1(c) of the United States District Court
for the Southern District of California.
reasons set forth herein, it is RECOMMENDED
that Defendants' Motions to Dismiss be
Lance Williams (“Plaintiff”) is a state prisoner
at Richard J. Donovan Correctional Facility
(“Donovan”) proceeding pro se and in
forma pauperis. (ECF No. 26 at
On March 15, 2018, Plaintiff filed a complaint pursuant to 42
U.S.C. § 1983 (“Complaint”). (ECF No. 1).
The Complaint sets forth various claims against officer J.
Melgoza (“Defendant Melgoza”), psychiatric
technician/nurse M. Kimani (“Defendant Kimani”),
and others. Plaintiff alleges that Defendants Melgoza and
Kimani violated his Eighth Amendment rights by acting with
deliberate indifference to his serious medical needs. (ECF
No. 1 at 8, 11-12). Plaintiff further alleges that Defendant
Kimani falsified medical records in violation of California
Penal Code sections 132 and 134. (Id. at 2).
28, 2019, Defendants Melgoza and Kimani filed a Motion to
Dismiss the claims against them. (ECF No. 26). Defendants
contend that Plaintiff failed to allege that Defendants
Melgoza and Kimani were deliberately indifferent to
Plaintiff's medical needs. (ECF No. 26-1 at 3-4).
Defendants further contend that California Penal Code
sections 132 and 134 do not offer redress under 42 U.S.C.
§ 1983. (Id. at 5-6).
14, 2019, Plaintiff filed an Opposition to Defendants'
Motion to Dismiss (“Opposition”). (ECF No. 28).
In the Opposition, Plaintiff alleges additional facts that
were not alleged in the Complaint. In ruling on a motion to
dismiss, the court may not consider facts alleged for the
first time in opposition to a motion to dismiss. See
Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th
Cir. 1993). As such, the Court's analysis is limited to
the facts alleged in the Complaint.
facts as presented are taken from Plaintiff's Complaint
and are not to be construed as findings of fact by the Court.
This discussion is limited to the allegations regarding
Defendants Melgoza and Kimani.
claims arise from a series of events on March 1, 2018. (ECF
No. 1 at 4). On March 1, 2018, Plaintiff walked to the
sergeant's office and crossed paths with officer Ortega
(“Defendant Ortega”). (Id.). Defendant
Ortega told Plaintiff it was “yard recall” and
Plaintiff must return to his cell. (Id.). Plaintiff
told Defendant Ortega that Plaintiff was going to see the
sergeant about “his court call, ” and continued
walking. (Id.). The conversation led to an
altercation where Defendant Ortega pushed Plaintiff into the
wall. (Id. at 5). The altercation escalated and
ended with Defendant Ortega handcuffing Plaintiff.
(Id.). Plaintiff alleges that Defendant Ortega
pulled the handcuffs “extremely tight.”
(Id.). Defendant Ortega took Plaintiff to the P.S.U.
mental health building and placed Plaintiff in the
“cage, ” where Plaintiff remained for one hour.
(Id.). Plaintiff requested medical throughout the
hour he spent in the cage. (Id. at 6).
Plaintiff was released from the cage, Plaintiff returned to
his building. (Id. at 8). Plaintiff asked Defendant
Melgoza to call medical to treat his injuries sustained
during the altercation with Defendant Ortega. (Id.).
Defendant Melgoza said, “I'm not calling anybody go
tell the Seargent.” [sic] (Id.). Plaintiff
requested Defendant Melgoza allow Plaintiff out of the
building to speak with the sergeant. (Id.).
Defendant Melgoza allowed Plaintiff out of the building.
(Id.). Before this conversation with Defendant
Melgoza, Plaintiff “went to numerous inmates
cells” [sic] to show them his injuries. (Id.).
examination following this incident, Plaintiff showed
Defendant Kimani “fresh dried blood” on his
wrist, a cut in his nose [sic], and fresh blood on his shirt.
(Id. at 11). Plaintiff informed Defendant Kimani of
“throbbing pain” in his body and that he could
not move his ring finger. (Id.). Defendant Kimani
did not perform a mental health assessment or check
Plaintiff's body for injuries or bruising. (Id.
at 12). Plaintiff attached to the Complaint a copy of the
medical report Defendant Kimani prepared following the
examination. (Id. at 30). The report indicates that
Plaintiff had scabs on his wrists. (Id.). The report
indicates that Defendant Kimani examined Plaintiff at 12:40
and that a registered nurse was notified at 13:00.
(Id.). Plaintiff alleges Defendant Kimani falsified
this report. (Id. at 12).
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of a claim. Navarro v. Block, 250 F.3d
729, 732 (9th Cir. 2001). “Under Federal Rule of Civil
Procedure 8(a)(2), a pleading must contain a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (internal quotations omitted). The pleader must
provide the Court with “more than an unadorned,
Id. at 678 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. The court must ...