Ledvina v. Marana, Town of et al

Filing 46

ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS ORDERED: The 41 Report and Recommendation is adopted. Defendants 32 Motion to Dismiss is granted; the remaining claims are dismissed with prejudice. The Clerk of Court is directed to terminate the action and enter judgment accordingly. Signed by Judge Cindy K Jorgenson on 8/21/2015. (See Order for details) (KEP)

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1 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 Marana, Town of, et al., 13 Defendants. 14 15 Plaintiff Martial Ledvina filed this civil rights Complaint alleging constitutional 16 deprivations in violation of 42 U.S.C. § 1983 as well as state-law claims against 17 numerous Defendants. (Doc. 1.) The parties stipulated to dismissal of the Marana 18 Defendants, and on February 4, 2015, the Court dismissed the state law claims with 19 prejudice and dismissed the federal constitutional claim against Defendant Sheriff 20 Clarence Dupnik with leave to amend. (Docs. 26, 30.) Plaintiff filed a First Amended 21 Complaint (FAC) against Dupnik and three Doe Defendants, and Defendants moved to 22 dismiss. (Docs. 31, 32.) At oral argument before Magistrate Judge D. Thomas Ferraro, 23 Plaintiff clarified that Dupnik was sued solely in his official capacity and that the Doe 24 Defendants were sued in their individual and official capacities. (See Doc. 41 at 2.) 25 On June 19, 2015, the Magistrate Judge issued a Report and Recommendation (R 26 & R) recommending that the motion to dismiss be granted and finding that further 27 amendment would be futile. (Doc. 41.) Plaintiff filed objections to the R & R and 28 Defendant filed a response, asking the Court to overrule the objections. (Docs. 44, 45.) 1 The Court will overrule Plaintiff’s objections, adopt the R & R, grant the Motion 2 to Dismiss, and terminate the action. 3 I. Governing Standard 4 The Court reviews de novo the objected-to portions of the Report and 5 Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for 6 clear error the unobjected-to portions of the Report and Recommendation. Johnson v. 7 Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); See also, Conley v. Crabtree, 14 8 F.Supp.2d 1203, 1204 (D. Or. 1998). 9 II. 10 11 Factual Background and the Report and Recommendation The R & R states the following facts as taken from the FAC. Plaintiff does not object to the statement of facts, and the Court finds no clear error. 12 The action arises from Plaintiff’s arrest on January 14, 2013, for alleged domestic 13 abuse and his subsequent one-day confinement in the Pima County Adult Detention 14 Complex (P.C.A.D.C.). Plaintiff was an 83-year-old, 140-pound man with a heart 15 condition. (Doc. 31 at 2.) Plaintiff underwent open heart surgery and began taking 16 numerous medications to prevent complications 15 months prior to his arrest. (Id.) 17 Plaintiff was arrested and booked into the Pima County Jail at 8:16 p.m. (Id.) During the 18 intake screening interview, Plaintiff’s medical conditions and prescription doses were 19 verified. (Id. at 3.) Plaintiff promptly advised a correctional officer at the jail of his need 20 to “see the nurse” but there was no response. (Id.) Plaintiff called out to the nurse 21 directly, but she too ignored his pleadings, and he was subsequently removed to a cell. 22 (Id.) On multiple occasions during the intervening hours of his detention, he reminded 23 officers he needed to see the nurse and take his medication, but without success. (Id.) 24 Plaintiff alleges that he experienced “much anxiety” from missing his evening and 25 morning doses of medication. (Id.) Plaintiff was released at noon and his medication was 26 returned. (Id.) 27 Plaintiff alleges there are no policies or procedures at the Pima County Jail 28 governing the administration of prescription medication to newly arrested inmates. (Id. at -2- 1 4.) He alleges a violation of his Fourteenth Amendment rights and seeks nominal and 2 punitive damages. 3 Defendants argue that Plaintiff’s Fourteenth Amendment claim should be 4 dismissed because: (1) the claim is barred by the Prison Litigation Reform Act (PLRA) 5 because Plaintiff failed to allege more than a de minimis physical injury; and (2) Plaintiff 6 failed to sufficiently allege a physical injury or real pain as necessary to establish 7 deliberate indifference to a serious medical need. 8 III. 9 10 11 12 13 14 15 Motion, Objections, Response, and Analysis A. PLRA As the R & R notes, Defendants have withdrawn their argument under the PLRA in light of Talamantes v. Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009), which holds that the term “prisoner” in the PLRA does not apply to a plaintiff who files his action after his detention has ceased. (Doc. 41 at 4.) But the Court takes the opportunity to address the PLRA argument because it had previously rejected the argument again urged by Defendants. In the Motion to Dismiss, Defendants state the following: 16 17 18 19 20 In dismissing Ledvina’s § 1983 claim, this Court agreed with the Magistrate’s Report and Recommendation that Ledvina failed to state a § 1983 claim because he failed to allege that he experienced enough harm to implicate the Eighth Amendment. Id. at 5:16-19. This Court also held that Ledvina’s claim was barred by 42 U.S.C. § 1997e(e) because Ledvina did not allege a physical injury. Id. at 4:25-5:15. 21 22 23 24 25 26 27 28 (Doc. 32 at 3.) In fact, the Court did not hold that Plaintiff’s claims were barred by the PLRA. Rather, the Court stated the following: In Oliver v. Keller, . . . the Ninth Circuit held that a claim for a constitutional violation as to conditions of confinement requires a showing of more than de minimis harm. 289 F.3d 623, 627 (9th Cir. 2002). The Oliver court also construed 42 U.S.C. § 1997e(e), which provides that a prisoner may not bring a civil action for mental or emotional injury without -3- 1 2 3 4 5 6 a prior showing of “physical injury.” The court held that this means that a prisoner may not obtain compensatory damages for mental or emotional injury if the “physical injury” is de minimis. But the physical injury requirement applies only to claims for mental or emotional injuries and does not bar claims for compensatory, nominal or punitive damages. Id. at 630. In Oliver, the Court determined that even absent physical injury, a prisoner was entitled to seek compensatory, nominal, and punitive damages premised on violations of his Fourteenth Amendment rights. Id. at 629-30. 7 A review of the claims in the FAC shows that Plaintiff seeks nominal and punitive 8 damages for an alleged violation of his Fourteenth Amendment rights, not a claim for 9 compensatory damages for mental or emotional injury. See Oliver, 289F.3d at 627-29. 10 This district continues to be plagued by defendants making this frivolous 11 argument, as the Hon. Stephen McNamee observed in a recent sealed Order to Show 12 Cause (OSC). The Court wrote This “lack of injury” argument is untenable and actually contrary to the holding in Oliver, which specified that the PLRA’s physical-injury requirement applies only to claims for mental and emotional injury and that where, as here, an inmate has actionable claims for compensatory, nominal or punitive damages premised on constitutional violations—and not on any alleged mental or emotional injuries—the claims are not barred by § 1997e(e). 289 F.3d at 629-30. [Defendant] is represented by the Office of the Arizona Attorney General in Phoenix. Since at least 2006, that Office has been presenting this same argument for dismissal in prisoner civil rights cases; namely, that § 1997e(e) bars as a matter of law a prisoner’s constitutional claim unless the prisoner demonstrates physical injury. See Halla v. Schriro, 05-cv0320-MHM (ECV) (Def.’s Mot., Doc. 36 at 6-7). And since that time, this Court has repeatedly rejected this argument and explained again and again that under Oliver, regardless of proof of a physical injury, § 1997e(e) does not bar a prisoner’s claims for damages premised on constitutional violations. Id., 2006 WL 3735983, at *3-4 (D. Ariz. Dec. 15, 2006); see e.g., Fields v. State of Arizona, CV 13-8069-PCT-PGR (DKD) (Order, Doc. 32 at 6 n.1) (D. Ariz. March 31, 2014); Baker v. Schriro, CV 07-0353PHX-SMM (JRI), 2008 WL 3877973, at *6 (D. Ariz. Aug. 20, 2008); Hill v. Schriro, CV 04-1908-PHX-SRB, 2007 WL 1120305, at *3 (D. Ariz. April 11, 2007).1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court has rejected this same argument from the Attorney General’s Office in Tucson and from private counsel. See e.g., Creamer v. Ryan, CV 10-0305-TUC-FRZ -4- 1 2 3 4 5 6 7 8 9 10 Other district courts within this circuit have also consistently concluded that under Oliver, if a plaintiff states a constitutional claim, as opposed to a claim for mental or emotional injuries, § 1997e(e)’s physical injury requirement does not apply. Low v. Stanton, CIV S-05-2211 MCE DAD P, 2010 WL 234859, at *4 (E.D. Cal. Jan. 14, 2010) [Plaintiff] does not seek recovery for “mental or emotional injury”; rather, he seeks damages for an alleged violation of his Eighth Amendment rights (Doc. 25 at 29, 31). Accordingly, his claim against [Defendant] is not barred by § 1997e(e). See Greening v. Miller-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014) (rejecting argument that the plaintiff’s claim was barred by § 1997e(e)’s “physical injury” requirement and finding that because he did not seek recovery for mental and emotional injury but instead sought declaratory judgment and injunctive relief for alleged Eighth and Fourteenth Amendment violations, the claim was not barred). 11 It appears to this Court that Defendant’s argument is not only devoid of merit but 12 is also legally frivolous. See United States v. Manchester Farming P’ship, 315 F.3d 13 1176, 1183 (9th Cir. 2003) (stating that a “frivolous [argument] is one that is groundless,” 14 and an argument is groundless if it is “foreclosed by binding precedent or . . . obviously 15 wrong”). This is particularly disturbing because this Court previously rejected the 16 argument in this very case. 17 Defendant’s counsel is reminded of his obligations under Federal Rule of Civil 18 Procedure 11. A copy of the Memorandum from the Attorney General’s Office issued 19 following the OSC is attached. 20 B. 21 A constitutional violation regarding medical care occurs when there is (1) a 22 deliberate indifference to the serious medical needs of a prisoner that (2) results in 23 “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). 24 Mere delay in receiving treatment or care is insufficient to state a claim unless that delay Constitutional Claim 25 26 27 28 (Order, Doc. 134 at 12-13); Abney v. Astrue, CV 04-525-TUC-RCC, 2008 WL 2397334, at *7 (D. Ariz. June 9, 2008); Benge v. Scalzo, CV 04-1687-PHX-DGC, 2008 WL 2157024, at *10 (D. Ariz. May 21, 2008). -5- 1 was harmful. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 2 (9th Cir. 1985). 3 The Magistrate Judge noted in the R & R that in Plaintiff’s response to the Motion 4 to Dismiss and at oral argument, Plaintiff sought to assert a Fourteenth Amendment claim 5 with a legal standard distinct from the Eighth Amendment standard set forth above. 6 Plaintiff suggested there was a constitutional right to be given medication as prescribed 7 and that a violation of such right would not require a showing of harm but Plaintiff cited 8 no cases to support this theory in his supplemental brief. Instead, he cited Jett v. Penner, 9 439 F.3d 1091, 1096 (9th Cir. 2006), which states that the required harm need not be 10 substantial, and argues that he alleges sufficient harm to state a claim. (Doc. 41 at 6; ref. 11 Doc. 39 at 4-6.) 12 13 14 15 16 17 In his Objections, Plaintiff argues that the Court previously stated that: ‘even absent physical injury, a prisoner was entitled to seek compensatory, nominal, and punitive damages premised on violations of his Fourteenth Amendment rights.’ See Doc. 30 at 5 (relying on Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002)). Seizing upon this legal premise, Plaintiff filed his First Amended Complaint (Doc. 31) seeking nominal and punitive damages for Defendants’ failure to administer his prescribed medication as directed by a physician while he was incarcerated at the County Jail. 18 19 (Doc. 44 at 2.) 20 Plaintiff further asserts that although he suffered no harm in the traditional 21 meaning of the word, he did suffer harm at a pharmacological and physiological level. He 22 contends that based on the arguments regarding the degree of harm that must be 23 experienced to maintain a claim under the Fourteenth Amendment, Plaintiff included in 24 his Supplement to Response to Motion to Dismiss Plaintiff’s First Amended Complaint, 25 an analysis of the medications that Plaintiff was denied and documentation showing that 26 denial of those medications results in changes to the chemical balance of the patient thus, 27 resulting in “physical” harm. (See Doc. 39 at 4-6.) Plaintiff argues that Jett states “[a] 28 prisoner need not show his harm was substantial; however, such would provide additional -6- 1 support for the inmate’s claim that the defendant was deliberately indifferent to his 2 needs.” 439 F.3d at 1096. Plaintiff also relies on the dictionary definitions of “harm” as 3 “injury, loss or detriment,” BLACK’S LAW DICTIONARY 285 (Pocket ed. 1996), and 4 additional definitions such as “bodily harm” which is defined as “physical pain, illness, 5 or impairment of the body” and “physical” which is defined as “material as opposed to 6 mental or spiritual” and “of or relating to the body.” Id.; THE MERRIAM-WEBSTER 7 DICTIONARY 524 (1974) respectively. 8 objections. Plaintiff repeats these arguments in his 9 The Report and Recommendation observed that Plaintiff also stated that “[t]he 10 extent to which the missed doses harmed Mr. Ledvina may never be determined.” (Doc. 11 41 at 6; ref. Doc. 39 at 5.) In his objections, Plaintiff acknowledges that this is true 12 because to know the extent to which the level of medicine in Plaintiff’s body had 13 changed would have required a blood test as soon as he was released from custody and 14 prior to taking any more medication. (Doc. 44 at 3.) But Plaintiff asserts that it is not 15 speculative that the level of medication in his system changed as a result of his not 16 receiving his medication and that [a]ny licensed physician would testify accordingly.” 17 (Id.) 18 The R & R found that the only harm alleged in the amended complaint is “much 19 anxiety” precipitated by the Doe Defendants refusal to provide Plaintiff’s heart 20 medication in a timely fashion. The Magistrate Judge concluded that Plaintiff fails to 21 allege in his complaint any facts upon which a reasonable inference could be drawn that 22 he did suffer non-de minimis harm. The Magistrate Judge noted that Plaintiff did not 23 allege that he experienced any pain, or that he suffered further medical complications due 24 to this anxiety. As Plaintiff points out in his objections, the R & R discusses the 25 allegations in the supplemental brief. 26 allegations as “merely a hypothesis of harms that could occur when the medications 27 prescribed to Plaintiff are not taken” and notes that Plaintiff “does not allege that any of 28 them did happen to him. In fact, the supplemental brief states, ‘[t]he extent to which the The Magistrate Judge characterized the new -7- 1 missed doses harmed Mr. Ledvina may never be determined.’” (Id. at 5 (emphasis in 2 original).) 3 speculative and do not create a reasonable inference that Plaintiff suffered more than de 4 minimis harm. The R & R holds that the additional facts in the supplemental brief are 5 The R & R adequately set out the standard of review on a Motion to Dismiss for 6 failure to state a claim, and this Court need not repeat that standard here. But it is worth 7 noting that “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 9 Moreover, “[a] claim has facial plausibility when the plaintiff pleads factual content that 10 allows the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” 12 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 13 unlawfully.” Iqbal, 556 U.S. at 678. Determining plausibility is a “context-specific 14 task. . .” that requires the court to “draw on its judicial experience and common sense.” 15 Id. at 679. A complaint cannot survive dismissal where the court can only infer that a 16 claim is merely possible rather than plausible. Id. . “The facts alleged must be sufficient 17 to nudge the claims ‘across the line from conceivable to plausible.’” Solis v. City of 18 Fresno, 2012 WL 868681, at *8 (E.D.Cal. Mar. 13, 2012 (quoting Bell Atlantic Corp. v. 19 Twombly, 550 U.S. 544, 547 (2007); see also Tesi v. Recon Trust NA, 2013 WL 2635613, 20 *4 (D.Ariz. June 12, 2013). Id. “The plausibility standard is not akin to a ‘probability 21 The Court agrees with the Magistrate Judge that even considering the allegations 22 in the supplemental briefing, Plaintiff fails to state a claim. As Magistrate Judge Ferraro 23 found, Plaintiff alleges only speculative injury. 24 speculative that the level of medication in Plaintiff’s body changed, but this is not 25 enough. It is insufficient to merely allege a change; without more, there is no allegation 26 of anything more than de minimis harm. Moreover, according to the facts alleged in the 27 FAC, Plaintiff was in the custody of Defendant for fewer than 16 hours and when he was 28 released his medication was returned to him. He does not claim that he immediately -8- Plaintiff now argues that it is not 1 sought medical attention or that he experienced medical complications as a result of 2 either the anxiety or the untimely medication. There is insufficient factual content to 3 allow the Court to draw the reasonable inference that any Defendant may be liable for a 4 Fourteenth Amendment violation. 5 The Court overrules Plaintiff’s objections. Moreover, the Court finds that further 6 amendment of the Complaint will not correct the deficiency. The Court will grant the 7 Motion to Dismiss and terminate the action. 8 IT IS ORDERED: 9 (1) The Report and Recommendation (Doc. 41) is adopted. 10 (2) Defendants Motion to Dismiss (Doc. 32) is granted; the remaining claims 11 12 13 14 are dismissed with prejudice. (3) The Clerk of Court is directed to terminate the action and enter judgment accordingly. Dated this 21st day of August, 2015. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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