United States District Court, S.D. California
REPORT AND RECOMMENDATION RE: MOTION TO
William V. Gallo United States Magistrate Judge.
Kenneth Wheeler, a state prisoner proceeding pro se
and in forma pauperis, has filed an amended
complaint under the Civil Rights Act, 42 U.S.C. § 1983.
(ECF No. 20.) Defendants Marengo, Lay, and Dominguez
have filed a motion to dismiss the amended complaint. (ECF
No. 21.) For the reasons that follow, the Court RECOMMENDS
that Defendants' motion be GRANTED and the Complaint be
DISMISSED with prejudice.
April 29, 2019, Plaintiff filed an amended complaint alleging
Defendants violated his Eighth Amendment rights. On May 24,
2019, Defendants filed a motion to dismiss. On June 10, 2019,
Plaintiff filed an opposition to the motion. A reply to the
opposition has not been filed.
2016, Plaintiff was housed at the Richard J. Donovan
Correctional Facility ('RJD”) in San Diego,
California. (See ECF No. 1 at 1.) Plaintiff claims
that on October 24, 2016, he suffered a serious injury to his
knee, was transported by ambulance to RJD's medical
facilities, and his leg was placed in a cast. While at the
medical facility, Plaintiff received a Comprehensive
Accommodation Chrono (Chrono) requesting a lower-level bunk
bed. (ECF No. 20 at 9.) When he returned to his housing unit
with crutches and “in horrific pain, ” Plaintiff
alleges that he informed Defendant Marengo of the Chrono.
Defendant Marengo told Plaintiff a lower bunk bed would be
provided, but Defendant Marengo's shift ended without
Plaintiff receiving the lower bunk accommodation.
Additionally, Plaintiff contends Defendant Marengo failed to
inform subsequent officers of the lower bunk request.
Dominguez then began the shift following Defendant
Marengo's shift. Plaintiff alleges that when Defendant
Dominguez asked why Plaintiff was lying on the floor of his
cell, Plaintiff told him he could not mount the top bunk, he
asked for a bottom bunk, and he informed Defendant Dominguez
of his lower bunk Chrono. However, Dominguez told Plaintiff
nothing could be done until the next day. Plaintiff alleges
he laid back on the floor because he could not climb to the
top bunk and the bottom bunk was occupied by another inmate.
next day, Defendant Lay began the shift following Defendant
Dominguez's shift. Plaintiff alleges he explained to
Defendant Lay that he had a lower bunk Chrono which could
also be found in the computer system. Plaintiff alleges that
Defendant Lay refused to give Plaintiff a lower bunk, refused
to call command staff or medical staff, and ordered Plaintiff
to return to the top bunk. Plaintiff alleges that he was
without a lower bunk from 4:00 p.m. on October 24, 2016 until
9:00 p.m. on October 25, 2016-or for approximately
on these facts, Plaintiff alleges Defendants
“disregarded [his] injury and medical condition[, ]
forcing [him] to remain on the floor and/or expecting [him]
to get on the top bunk, disregarding the risk to [his]
safety.” He also alleges Defendants ignored the
instructions of his treating physician. Plaintiff thus
attempts to allege violations of the Eighth Amendment based
on Defendants' deliberate indifference to his serious
Rule 12(b)(6) Motion to Dismiss
Rule of Civil Procedure 12(b)(6) permits a party to raise a
motion that the complaint “fail[s] to state a claim
upon which relief can be granted, ” generally referred
to as a motion to dismiss. Fed.R.Civ.P. 12(b)(6). The Court
evaluates whether a complaint states a cognizable legal
theory and sufficient facts in light of Federal Rule of Civil
Procedure 8(a), which requires a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a). Although Rule 8
“does not require ‘detailed factual
allegations,' . . . it [does demand] more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). In other words, “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citation omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Iqbal, 556 U.S. at
677 (citing Twombly, 550 U.S. at 557).
survive a motion to dismiss, a claim must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570);
see also Fed. R. Civ. P. 12(b)(6). A claim is
facially plausible when the facts pled “allow . . . the
court to draw the reasonable inferences that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 677 (citing Twombly, 550 U.S. at 557). That
is not to say that the claim must be probable, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Facts “merely
consistent with a defendant's liability” fall short
of a plausible entitlement to relief. Id. (quoting
Twombly, 550 U.S. at 557). Further, the Court need
not accept as true “legal conclusions” contained
in the complaint. Id. This review requires
context-specific analysis involving the Court's
“judicial experience and common sense.”
Id. at 678 (citation omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-'that the
pleader is entitled to relief.'” Id.
Standards Applicable to Pro Se Litigants in ...