United States District Court, E.D. California
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)
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.
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
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).
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).
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).
OF RELEVANT ALLEGATIONS IN PLAINTIFF'S FOURTH AMENDED
was processed at North Kern State Prison (“NKSP”)
on June 26, 2014. (ECF No. 55 at 6). 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).
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
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).
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).
MOTION TO DISMISS
Motion to Dismiss
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 ...