United States District Court, S.D. California
REPORT AND RECOMMENDATION GRANTING DEFENDANT'S
MOTION TO DISMISS [ECF No. 15]
MITCHELL D. DEMBIN, UNITED STATES MAGISTRATE JUDGE
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
reasons set forth herein, the Court
RECOMMENDS Defendant's Motion to Dismiss
be GRANTED and Plaintiff's Complaint be
DISMISSED WITH PREJUDICE.
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.).
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).
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).
29, 2016, while housed at Centinela State Prison
(“CEN”), Plaintiff tore two ligaments in his
right ankle. (ECF No. 1 at 3). 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.).
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.
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).
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.
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,
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 ...