Ledvina v. Marana, Town of et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED the 19 Report and Recommendation is adopted. Defendant Sheriff Dupnik's 10 Motion to Dismiss is GRANTED; the state-law claims in the Complaint are DISMISSED with prejudice, and the fede ral constitutional claim is DISMISSED with leave to amend the Complaint. Plaintiff has 30 days from the date of this Order to file a first amended complaint. Defendants Town of Marana, Rozeman, and Dittiger's 15 Motion to Dismiss is denied as moot. Signed by Judge Cindy K Jorgenson on 2/2/15. (BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Martial Ledvina,

No. CV-14-01989-TUC-CKJ
Plaintiff,

10
11

v.

12

ORDER

Town of Marana, et al.,

13

Defendants.

14
15
16

Plaintiff Martial Ledvina filed this civil rights Complaint alleging constitutional

17

deprivations in violation of 42 U.S.C. § 1983 as well as state-law claims against

18

numerous Defendants. (Doc. 1.) On June 9, 2014, Defendant Sheriff Clarence Dupnik

19

filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), which Plaintiff

20

opposes. (Docs. 10, 12.) On September 9, 2014, Magistrate Judge D. Thomas Ferraro

21

issued a Report and Recommendation (R & R) recommending that the Motion to Dismiss

22

be granted. (Doc. 19.) Plaintiff filed objections to the R & R, and Defendant has filed a

23

response. (Doc. 27, 28.)

24

The Court will overrule Plaintiff’s objections, adopt the R & R, grant the Motion

25

to Dismiss, and give Plaintiff 30 days to file an amended complaint.

26

I.

Governing Standard

27

The Court reviews de novo the objected-to portions of the Report and

28

Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for

1

clear error the unobjected-to portions of the Report and Recommendation. Johnson v.

2

Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); See also, Conley v. Crabtree, 14

3

F.Supp.2d 1203, 1204 (D. Or. 1998).

4

II.

Factual Background and the Report and Recommendation

5

The action arises from Plaintiff’s arrest on January 14, 2013, for alleged domestic

6

abuse and his subsequent one-day confinement in the Pima County Adult Detention

7

Complex (P.C.A.D.C.). On January 7, 2015, Plaintiff stipulated to dismiss the claims

8

against the Marana Defendants—the Town of Marana, Rozeman, and Dittinger; these

9

federal and state claims concerned the arrest. (Doc. 26.) The remaining claims are

10

against Sheriff Dupnik for failure to provide a nurse and Plaintiff’s heart medication;

11

these claims include § 1983 claims and state-law claims. (Doc. 1.)

12

The Complaint alleges that Plaintiff was booked into the P.C.A.D.C. on January

13

14, 2013, and released at noon on January 15, 2013. At the time of the incident, Plaintiff

14

was an 83-year old man with a heart condition; he alleges he was denied medical

15

attention at P.C.A.D.C. when he advised a Correctional Officer that he had a heart

16

condition and needed a nurse. He did not receive his heart medication until he was

17

released at noon.

18

Sheriff Dupnik moves to dismiss the § 1983 constitutional claim (Count 1, in part)

19

on the grounds that (1) Plaintiff did not sufficiently allege that anyone at the P.C.A.D.C.

20

acted with deliberate indifference to his serious medical needs, and (2) Plaintiff did not

21

adequately allege that Sheriff Dupnik was personally involved in or sufficiently causally

22

connected to the alleged constitutional violation. (Doc. 10.) All Defendants argue that

23

Plaintiff’s state-law claims (Counts 2-6) are time-barred by Arizona’s statute of

24

limitations.1 (Docs. 10, 15.)

25

1

26
27
28

The R & R observes that Plaintiff’s Complaint does little to explain which claims are
alleged against which defendant and that “from the parties’ briefing it can be surmised
that the claims specific to Sheriff Dupnik are an Eighth Amendment Civil Rights
violation under Count 1 and Counts 3-6.” This Court finds that Count 2—battery, and
Count 3—false imprisonment, mention only the conduct of now-dismissed Defendant
Dittiger, not Sheriff Dupnik. Indeed, Plaintiff concedes in the Objections that because
-2-

1

The Magistrate Judge held that Plaintiff’s Complaint fails to allege a constitutional

2

violation because it does not adequately allege the existence of harm, and it does not

3

adequately allege conduct by Sheriff Dupnik connecting him to an alleged constitutional

4

violation. Finally, the Magistrate Judge found that the state-law claims had accrued on

5

January 14, 2013, and were therefore, time barred because the Complaint was not filed

6

until March 27, 2014. (Doc. 19; Doc. 1.)

7

As to harm, the R & R states that under the applicable standard, a constitutional

8

violation regarding medical care occurs when there is (1) a deliberate indifference to the

9

serious medical needs of a prisoner that (2) results in “unnecessary and wanton infliction

10

of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Although the Magistrate Judge

11

held that the first part of the Estelle test had been met, he also held that Plaintiff has not

12

adequately alleged a harm that satisfies the second part of the Estelle test. Noting that a

13

plaintiff need not allege or prove substantial harm, the Magistrate Judge correctly held

14

that alleged indifference to the serious medical need must have resulted in a more than de

15

minimis Eighth Amendment harm. The Magistrate Judge found that the only harm

16

alleged in the Complaint is temporary “anxiety” precipitated by P.C.A.D.C. staff’s refusal

17

to provide heart medication in a timely fashion; he did not allege that he experienced any

18

pain, or that he suffered further medical complications due to this anxiety. Mere delay in

19

receiving treatment or care is insufficient to state a claim unless that delay was harmful.

20

See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

21

The Magistrate Judge also found that Plaintiff failed to state a claim because he

22

did not adequately allege that Sheriff Dupnik was personally involved in or causally

23

related to the alleged constitutional violation. Plaintiff is suing Sheriff Dupnik in his

24

individual and official capacities. As to individual liability, the Magistrate Judge noted

25

that a “plaintiff may state a claim against a supervisor for deliberate indifference based

26

upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his

27
28

the Marana Defendants have been dismissed, the only state-law claims remaining are
Counts 4-6. (Doc. 27 at 5.)
-3-

1

or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Ashcroft v.

2

Iqbal, 556 U.S. 662, 677 (2009). A defendant may be liable if: (1) he is personally

3

involved in the constitutional violation; or (2) there is a sufficient causal connection

4

between his conduct and the violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir.

5

1989).

6

The Magistrate Judge found that although the Complaint must adequately allege a

7

sufficient causal connection between Sheriff Dupnik’s acts and the constitutional

8

violation, Plaintiff’s Complaint does no more than state conclusory allegations not

9

entitled to a presumption of truth when considered during a motion to dismiss and it does

10

not offer adequate (or any) factual foundation upon which these conclusions rest. The

11

Complaint baldly alleges that: (1) Defendant maintained polices and/or long standing

12

practices or customs that resulted in the violation of Plaintiff’s rights; (2) those polices,

13

practices, and customs were inadequate; and (3) those polices, practices, and customs

14

demonstrated deliberate indifference. (Doc. 1 at 5.) And as to an official-capacity claim,

15

the Magistrate Judge found only bald assertions. He also rejected Plaintiff’s argument

16

that he should be permitted to do discovery first.

17

The Magistrate Judge also found that the state-law claims are barred by the statute

18

of limitations; in Arizona, all actions against public entities and public employees “shall

19

be brought within one year after the cause of action accrues and not afterward.” Ariz.

20

Rev. Stat. § 12-821. The parties disputed when the statute of limitations accrued for each

21

claim. The Magistrate Judge held that they all accrued on January 14, 2013, because

22

Plaintiff was present and aware of the injury and by whom it was inflicted.

23

III.

Objections, Response, and Analysis

24

A.

Constitutional Claim

25

In his Objections, as to harm, Plaintiff argues that his Complaint alleges “much

26

anxiety, “severe emotional distress,” “mental distress,” and “suffering” and that this

27

psychological pain is sufficient to state a claim. (Doc. 27 at 3.) It appears to this Court

28

that Hudson v. McMillian, which is cited in the R & R and which involved use of force, is

-4-

1

not relevant to the issue here. 503 U.S. 1, 10 (1992). In Hudson the Supreme Court held

2

that de minimis uses of physical force were generally not prohibited by the constitution;

3

on the other hand, the Court held that extent of the inmate’s injuries provided no basis for

4

dismissal of his § 1983 claim for excessive force. Id. at 9-10.

5

however, the Ninth Circuit held that a claim for a constitutional violation as to conditions

6

of confinement requires a showing of more than de minimis harm. 289 F.3d 623, 627

7

(9th Cir. 2002). The Oliver court also construed 42 U.S.C. § 1997e(e), which provides

8

that a prisoner may not bring a civil action for mental or emotional injury without a prior

9

showing of “physical injury.” The court held that this means that a prisoner may not

10

obtain compensatory damages for mental or emotional injury if the “physical injury” is

11

de minimis. But the physical injury requirement applies only to claims for mental or

12

emotional injuries and does not bar claims for compensatory, nominal or punitive

13

damages. Id. at 630. In Oliver, the Court determined that even absent physical injury, a

14

prisoner was entitled to seek compensatory, nominal, and punitive damages premised on

15

violations of his Fourteenth Amendment rights. Id. at 629-30.

In Oliver v. Keller,

16

Here, as the Magistrate Judge correctly found, the only harm that Plaintiff alleged

17

that is clearly related to the incident at P.C.A.D.C. is “much anxiety.’’ (Doc. 1 ¶14.) The

18

Court agrees with the Magistrate Judge that, without more, this is de minimis harm and

19

fails to state a claim. The Court overrules Plaintiff’s objection.

20

The Court also agrees that Plaintiff’s allegations are insufficient to state a claim

21

because they do not tie Sheriff Dupnik’s conduct to any alleged constitutional violation.2

22

To state a claim against a supervisory official, the civil rights complainant must allege

23

that the supervisory official personally participated in the constitutional deprivation or

24

that the supervisory official was aware of widespread abuses and, with deliberate

25

indifference to the inmate=s constitutional rights, failed to take action to prevent further

26
27
28

2

In addition, the Complaint makes no specific allegations against any of the Doe
Defendants.

-5-

1

misconduct. See Ortez v. Washington County, Or., 88 F.3d 804, 809 (9th Cir. 1996);

2

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); King v. Atiyeh, 814 F.2d 565, 568

3

(9th Cir. 1987); see also Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691

4

(1978). Individual liability hinges upon a defendant’s participation in the deprivation of a

5

constitutional right. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).

6

This participation may involve setting in motion acts that cause others to inflict

7

constitutional injury. Id. On the other hand, a suit against a municipal officer or official

8

in that person’s official capacity is treated as a suit against the entity of which the

9

municipal officer or official is an agent. See Monell, 436 U.S. at 690 n.55; Kentucky v.

10

Graham, 473 U.S. 159, 166 (1985). However, although “a municipality can be sued

11

under § 1983, . . . it cannot be held liable unless a municipal policy or custom caused the

12

constitutional injury.” Leatherman v. Tarrant County Narcotics Intelligence and

13

Coordination Unit, 507 U.S. 163, 166 (1993); Lewis v. Sacramento County, 98 F.3d 434,

14

446 (9th Cir. 1996) rev=d on other grounds, 523 U.S. 835 (1998). In an official-capacity

15

suit, a defendant’s liability is connected to the entity’s policy or custom that played a part

16

in the violation of federal law. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir.1986).

17

An unconstitutional policy need not be formal or written to create municipal

18

liability under § 1983; however, it must be so permanent and well settled as to constitute

19

a custom or usage with the force of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-

20

68, (1970). And “[p]roof of a single incident of unconstitutional activity is not sufficient

21

to impose liability under Monell, unless proof of the incident includes proof that it was

22

caused by an existing, unconstitutional municipal policy, which policy can be attributed

23

to a municipal policy maker.” Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985); see

24

Avalos v. Baca, No. 07-56511 (9th Cir. Feb. 24, 2010) (quoting Avalos v. Baca, 517 F.

25

Supp. 2d 1156, 1162 (C.D. Cal. 2007).

26

In his Objections, Plaintiff again asserts that he should be permitted to do

27

discovery and that “there is a logical presumption that policies exist governing the giving

28

of medication to jail inmates.” (Doc. 27 at 4.) While the P.C.A.D.C. no doubt has

-6-

1

dozens of policies and practices, the Court disagrees that the Complaint is sufficient to

2

survive the Motion to Dismiss. As the Magistrate Judge observed, to adequately state an

3

official-capacity claim, a complaint must do more than “simply recite the elements of a

4

cause of action, but must contain sufficient allegations of underlying facts.” AE ex rel.

5

Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). “Plaintiff’s Complaint

6

does no more than baldly assert the elements of such a claim without providing any

7

factual support.” (Doc. 19 at 9; ref. Doc. 1 ¶20.)

8

In fact, the Complaint does not even generally describe the alleged P.C.A.D.C.

9

policy or practice that resulted in Plaintiff not receiving his medication. The Court

10

believes this is a particularly significant deficiency where the allegations of the

11

Complaint show that Plaintiff was at the P.C.A.D.C. for a single day, and he alleges that

12

on the day he did not receive medication, he “observed several inmates going up to see

13

the nurse but, he was never called up.” (Doc. 1 ¶14.) In other words, the facts alleged

14

suggest that the policy or practice is to provide health care. As Plaintiff himself notes,

15

the facts alleged “must show that a violation is plausible, not just possible.” (Doc. 27 at

16

4, citing Iqbal, 556 U.S. at 678. While Federal Rule of Civil Procedure 8 does not

17

demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

18

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the

19

elements of a cause of action, supported by mere conclusory statements, do not suffice.”

20

Id.

21
22

The Complaint fails to adequately state a claim. But because Plaintiff may be able
to amend the Complaint to state a claim, leave to amend will be granted.

23

B.

State-Law Claims

24

Plaintiff also objects to the Magistrate Judge dismissing the state-law claims with

25

prejudice, but the argument is difficult to comprehend as it applies to the remaining state-

26

law claims against Sheriff Dupnik. Plaintiff first acknowledges that the claims against

27

the Marana Defendants have been dismissed and that the remaining state-law claims are

28

-7-

1

Counts 4 through 6 (intentional infliction of emotional distress, negligence, and gross

2

12

negligence). He then argues that
the actions of the Marana Defendants were a precipitating element of the
legal analysis and steps taken by Plaintiff. Specifically, the state law claims
of Battery and False Imprisonment, if not legally justified by the Marana
Defendants, form the basis of the cause of action against them. . . If the
Magistrate’s application of the law is correct, and a claim for false arrest
and imprisonment accrues on the date of arrest, a person who believes he
has been wrongfully arrested would be forced to lodge a notice of claim
while the criminal prosecution is ongoing. . . and to plead the factual and
legal theories of liability underlying his civil claims, he would have to
discuss the facts and circumstances surrounding his prosecution and, in
doing so, would waive his Fifth Amendment right not to discuss the
criminal case. Requiring the date a cause of action accrues in a civil case
where criminal charges were filed against the Plaintiff to be strictly
determined to be the date of Plaintiff’s arrest would require such Plaintiffs
to be unlawfully forced to choose between two fundamental rights.

13

(Doc. 27 at 5-6.) He concludes that “[a]s it pertains to the state law claims against

14

Defendant Dupnik, Plaintiff maintains that judicial economy and public policy favor the

15

joining of all known and available tortfeasors as defendants in one action and that

16

whenever possible, all claims should be disposed of in one action and that when the cause

17

of action accrues is usually a question for the jury.” (Id. at 7.)

3
4
5
6
7
8
9
10
11

18

The Court overrules this objection. The claims against the Marana Defendants

19

have been dismissed by stipulation. And as the Magistrate Judge held, in this case, the

20

dismissal of the criminal charges had no relevance to Plaintiff’s knowledge of the alleged

21

damage and cause for the claims against Sheriff Dupnik for intentional infliction of

22

emotional distress, negligence, or gross negligence; the elements for the claims were

23

known to Plaintiff on January 14 or 15, 2013. The Complaint was not filed until March

24

27, 2014. (Doc. 1.) Thus, the claims against Sheriff Dupnik are barred by the statute of

25

limitations. The Court need not address the findings in the R & R regarding the claims

26

against the dismissed Defendants.
Accordingly,

27
28

///

-8-

1

IT IS ORDERED:

2

(1)

The Report and Recommendation (Doc. 19) is adopted.

3

(2)

Defendant Sheriff Dupnik’s Motion to Dismiss (Doc. 10) is granted; the

4

state-law claims in the Complaint are dismissed with prejudice, and the federal

5

constitutional claim is dismissed with leave to amend the Complaint.

6
7
8
9
10

(3)

Plaintiff has 30 days from the date of this Order to file a first amended

complaint.
(4)

Defendants Town of Marana, Rozeman, and Dittiger’s Motion to Dismiss

(Doc. 15) is denied as moot.
Dated this 2nd day of February, 2015.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-