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Wheeler v. Marengo

United States District Court, S.D. California

November 13, 2019

KENNETH WHEELER, Plaintiff,
v.
K. MARENGO et al., Defendants.

          REPORT AND RECOMMENDATION RE: MOTION TO DISMISS

          Hon. William V. Gallo United States Magistrate Judge.

         Plaintiff 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.)[1] 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.

         I. BACKGROUND

         A. Procedural Background

         On 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.

         B. Factual Allegations[2]

         In 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.

         Defendant 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.

         The 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 twenty-nine hours.

         Based 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 medical needs.

         II. LEGAL STANDARD

         A. Rule 12(b)(6) Motion to Dismiss

         Federal 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         “To 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.

         B. Standards Applicable to Pro Se Litigants in ...


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