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Medrano v. Ortega

United States District Court, S.D. California

October 31, 2019

ROLANDO MEDRANO, Plaintiff,
v.
ROGELIO ORTEGA, et al., Defendants.

          REPORT AND RECOMMENDATION GRANTING DEFENDANT'S MOTION TO DISMISS [ECF No. 15]

          HON. MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California.

         For the reasons set forth herein, the Court RECOMMENDS Defendant's Motion to Dismiss be GRANTED and Plaintiff's Complaint be DISMISSED WITH PREJUDICE.

         I. PROCEDURAL HISTORY

         Plaintiff Rolando Medrano (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, constructively filed a complaint pursuant to 42 U.S.C. § 1983 on February 4, 2019, in the Central District of California. (ECF No. 1; see also ECF No. 12). On March 4, 2019, the case was transferred to this Court. (ECF Nos. 6-9). On May 21, 2019, the District Judge screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF No. 12). The only claims to survive screening were the inadequate medical care claims against Defendant Rogelio Ortega, Staff Physician (“Defendant”). (Id.). Accordingly, Defendants H. Patel and S. Gates were dismissed. (Id.).

         On August 13, 2019, Defendant moved to dismiss Plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 15). Defendant contends Plaintiff failed to timely file this action and failed to sufficiently allege Defendant was deliberately indifferent to his serious medical needs. (Id.). Plaintiff did not file an opposition. (See Docket).

         II. FACTUAL BACKGROUND

         These facts are taken from Plaintiff's Complaint and are limited to the claims relating to Defendant. They are not to be construed as findings of fact by the Court. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740 (1976) (noting that the Court must accept as true allegations set forth in the complaint when ruling on a motion to dismiss).

         On May 29, 2016, while housed at Centinela State Prison (“CEN”), Plaintiff tore two ligaments in his right ankle. (ECF No. 1 at 3).[1] On May 13, 2016, Defendant ordered an X-ray and prescribed Tylenol 3 for three days. (Id.). On June 13, 2016, Plaintiff requested Defendant renew his Tylenol 3 prescription. (Id.). Defendant did not renew the prescription and instead prescribed “less effective medication” despite Plaintiff's complaints of “significant and immobilizing pain.” (Id.).

         On August 2, 2016, Plaintiff was referred to an orthopedic surgeon, who ordered an MRI. (Id. at 4). On August 10, 2016, Defendant re-prescribed Tylenol 3. (Id.). On August 19, 2016, Plaintiff was given an MRI. (Id.). On September 6, 2016, Defendant decreased Plaintiff's daily Tylenol 3 dosage and ordered his pain medication be discontinued on September 20, 2016. (Id.).

         On September 27, 2016, Plaintiff's orthopedic surgeon confirmed a ligament tear to Plaintiff's ankle. (Id. at 5). On October 6, 2016, Defendant refused to prescribe stronger pain management medication despite Plaintiff's complaints of “uncontrolled pain to his right ankle.” (Id.). As a result, Plaintiff “endure[d] months” of continued pain. (Id.). On November 1, 2016, Defendant Ortega refused to prescribe stronger pain medication, even though Plaintiff had the same amount of pain and walked with a cane. (Id. at 6).

         On November 8, 2016, Plaintiff's orthopedic surgeon noted a “popping and clicking” in his right ankle, Plaintiff's use of an aircast, and reports of constant sharp pain. (Id. at 7). The orthopedic surgeon recommended “right ankle arthroscopy and repair of tibia fibula ligament, ” and Tylenol 3 for pain management. (Id.). On November 15, 2016, Defendant allegedly “substituted his own judgment, ” and failed to renew the Tylenol 3 prescription. (Id.). Thus, Plaintiff alleges Defendant was deliberately indifferent to his serious medical needs.

         III. LEGAL STANDARD

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 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 quotation marks omitted). The pleader must provide the Court with “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atl. 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 ...


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