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Jercich v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

December 20, 2019

GEORGE SHELDON JERCICH, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT SMITH'S MOTION TO DISMISS, DISMISS THE FOURTH AMENDED COMPLAINT WITH PREJUDICE, AND DENY PLAINTIFF'S MOTION FOR RECONSIDERATION (ECF NOS. 56, 57)

         George Sheldon Jercich (“Plaintiff”) is a former state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff's Fourth Amended Complaint. (ECF No. 45). Before the Court are Defendant Smith's motion to dismiss and Plaintiff's motion for reconsideration. (ECF Nos. 56, 57). For the reasons described below, the undersigned will recommend that the motion to dismiss be granted and the motion for reconsideration be denied.

         I. BACKGROUND

         Plaintiff filed the Complaint commencing this action on January 5, 2018. (ECF No. 1). On March 2, 2018, Plaintiff filed a motion for leave to file a First Amended Complaint along with a First Amended Complaint. (ECF No. 19). On March 5, 2018, Plaintiff requested leave to file a Second Amended Complaint (“SAC”). (ECF No. 20). On March 6, 2018, Plaintiff lodged the SAC. (ECF No. 21). On March 8, 2018, the Court granted Plaintiff's motion to file the SAC. (ECF No. 22).

         Two motions to dismiss the SAC were filed. (ECF Nos. 33, 38). On November 29, 2018, the Court granted Plaintiff's motion to file a Third Amended Complaint. (ECF No. 43). Accordingly, the pending motions to dismiss were denied as moot. (ECF No. 44). On January 4, 2019, Plaintiff filed the Third Amended Complaint (“TAC”). (ECF No. 45).

         Two motions to dismiss the TAC were filed. (ECF Nos. 46, 47). On August 28, 2019, the Court granted the motions to dismiss, granted Plaintiff leave to amend only his Eighth Amendment medical care claim regarding the alleged failure to conduct a concussion examination, and dismissed with prejudice all remaining claims. The Court advised Plaintiff that there would be no further opportunities to amend. (ECF No. 54).

         On September 30, 2019, Plaintiff filed a Fourth Amended Complaint (“FAC”). (ECF No. 55). On October 16, 2019, Defendant Smith filed the instant motion to dismiss the FAC with prejudice for failure to state facts sufficient to state a claim for relief. (ECF No. 56). Plaintiff filed an opposition to the motion to dismiss and a motion for reconsideration regarding the Court's previous dismissal of Plaintiff's claims. (ECF No. 57). Defendant Smith has filed a reply. (ECF No. 58).

         II.SUMMARY OF RELEVANT ALLEGATIONS IN PLAINTIFF'S FOURTH AMENDED COMPLAINT [[1]

         Plaintiff was processed at North Kern State Prison (“NKSP”) on June 26, 2014. (ECF No. 55 at 6).[2] Plaintiff was placed in “Mainline” housing and within hours, Plaintiff was jumped from behind and beaten over the head and in the face. Plaintiff was knocked out. (Id. at 11).

         After Plaintiff was beaten in the dorm, prison personnel, including Defendant Smith, took Plaintiff to “Medical, ” where Plaintiff was placed on a single elevated hospital-type bed. While in the bed and after standing up from the bed, Plaintiff repeatedly asked for some type of concussion inspection. The nurse and Defendant Smith ignored Plaintiff's pleas while they continued to talk between themselves, focusing on whether or not Plaintiff had been stabbed. Once it was determined that Plaintiff was not stabbed, the nurse and Defendant Smith finished cleaning Plaintiff up and told him to get off the bed. (ECF No. 55 at 12).

         Defendant Smith then escorted Plaintiff outside. Smith unlocked “a phone-booth sized, expanded metal cage-enclosure” and told the younger inmate who was inside to get out. Smith then locked the younger inmate in a second enclosure/holding cell, which had a seat, and placed Plaintiff in the first holding cell that had no seat. (ECF No. 55 at 12). When Plaintiff looked out, his surroundings appeared blurry. Plaintiff demanded a concussion inspection and informed Defendant Smith that his vision was blurry. Defendant Smith refused Plaintiff's attempts to get a concussion inspection and told Plaintiff that he was not experiencing blurry vision but that it only appeared so because Plaintiff was looking through “expanded metal.” (Id. at 13).

         Plaintiff remained standing in the holding cell for approximately thirty minutes and then was taken to a new dorm. (ECF No. 55 at 14). Plaintiff was not clear-headed for two to three days and he did not feel well for a couple of weeks. (Id. at 15). Plaintiff claims that it was obvious that Defendant Smith failed to follow up with anyone regarding the possibility of Plaintiff being concussed because no one ever came to deal with Plaintiff's possible concussion. (Id. at 16).

         III. MOTION TO DISMISS

         A. Legal Standards

         1. Motion to Dismiss

         In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In ...


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