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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Martial Ledvina,

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

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v.

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ORDER

Marana, Town of, et al.,

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Defendants.

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Plaintiff Martial Ledvina filed this civil rights Complaint alleging constitutional

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

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numerous Defendants. (Doc. 1.) The parties stipulated to dismissal of the Marana

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Defendants, and on February 4, 2015, the Court dismissed the state law claims with

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prejudice and dismissed the federal constitutional claim against Defendant Sheriff

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Clarence Dupnik with leave to amend. (Docs. 26, 30.) Plaintiff filed a First Amended

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Complaint (FAC) against Dupnik and three Doe Defendants, and Defendants moved to

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dismiss. (Docs. 31, 32.) At oral argument before Magistrate Judge D. Thomas Ferraro,

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Plaintiff clarified that Dupnik was sued solely in his official capacity and that the Doe

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Defendants were sued in their individual and official capacities. (See Doc. 41 at 2.)

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On June 19, 2015, the Magistrate Judge issued a Report and Recommendation (R

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& R) recommending that the motion to dismiss be granted and finding that further

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amendment would be futile. (Doc. 41.) Plaintiff filed objections to the R & R and

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Defendant filed a response, asking the Court to overrule the objections. (Docs. 44, 45.)

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

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to Dismiss, and terminate the action.

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I.

Governing Standard

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

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

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

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

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

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II.

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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.

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

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

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Complex (P.C.A.D.C.). Plaintiff was an 83-year-old, 140-pound man with a heart

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condition. (Doc. 31 at 2.) Plaintiff underwent open heart surgery and began taking

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numerous medications to prevent complications 15 months prior to his arrest. (Id.)

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Plaintiff was arrested and booked into the Pima County Jail at 8:16 p.m. (Id.) During the

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intake screening interview, Plaintiff’s medical conditions and prescription doses were

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verified. (Id. at 3.) Plaintiff promptly advised a correctional officer at the jail of his need

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to “see the nurse” but there was no response. (Id.) Plaintiff called out to the nurse

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directly, but she too ignored his pleadings, and he was subsequently removed to a cell.

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(Id.) On multiple occasions during the intervening hours of his detention, he reminded

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officers he needed to see the nurse and take his medication, but without success. (Id.)

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Plaintiff alleges that he experienced “much anxiety” from missing his evening and

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morning doses of medication. (Id.) Plaintiff was released at noon and his medication was

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returned. (Id.)

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Plaintiff alleges there are no policies or procedures at the Pima County Jail

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governing the administration of prescription medication to newly arrested inmates. (Id. at

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4.) He alleges a violation of his Fourteenth Amendment rights and seeks nominal and

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punitive damages.

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Defendants argue that Plaintiff’s Fourteenth Amendment claim should be

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dismissed because: (1) the claim is barred by the Prison Litigation Reform Act (PLRA)

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because Plaintiff failed to allege more than a de minimis physical injury; and (2) Plaintiff

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failed to sufficiently allege a physical injury or real pain as necessary to establish

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deliberate indifference to a serious medical need.

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III.

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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:

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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.

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(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
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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.

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A review of the claims in the FAC shows that Plaintiff seeks nominal and punitive

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damages for an alleged violation of his Fourteenth Amendment rights, not a claim for

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compensatory damages for mental or emotional injury. See Oliver, 289F.3d at 627-29.

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This district continues to be plagued by defendants making this frivolous

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argument, as the Hon. Stephen McNamee observed in a recent sealed Order to Show

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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

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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
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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).

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It appears to this Court that Defendant’s argument is not only devoid of merit but

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is also legally frivolous. See United States v. Manchester Farming P’ship, 315 F.3d

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1176, 1183 (9th Cir. 2003) (stating that a “frivolous [argument] is one that is groundless,”

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and an argument is groundless if it is “foreclosed by binding precedent or . . . obviously

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wrong”). This is particularly disturbing because this Court previously rejected the

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argument in this very case.

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Defendant’s counsel is reminded of his obligations under Federal Rule of Civil

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Procedure 11. A copy of the Memorandum from the Attorney General’s Office issued

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following the OSC is attached.

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B.

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A constitutional violation regarding medical care occurs when there is (1) a

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deliberate indifference to the serious medical needs of a prisoner that (2) results in

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“unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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Mere delay in receiving treatment or care is insufficient to state a claim unless that delay

Constitutional Claim

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(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).

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was harmful. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407

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(9th Cir. 1985).

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The Magistrate Judge noted in the R & R that in Plaintiff’s response to the Motion

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to Dismiss and at oral argument, Plaintiff sought to assert a Fourteenth Amendment claim

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with a legal standard distinct from the Eighth Amendment standard set forth above.

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Plaintiff suggested there was a constitutional right to be given medication as prescribed

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and that a violation of such right would not require a showing of harm but Plaintiff cited

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no cases to support this theory in his supplemental brief. Instead, he cited Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006), which states that the required harm need not be

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substantial, and argues that he alleges sufficient harm to state a claim. (Doc. 41 at 6; ref.

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Doc. 39 at 4-6.)

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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.

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(Doc. 44 at 2.)

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Plaintiff further asserts that although he suffered no harm in the traditional

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meaning of the word, he did suffer harm at a pharmacological and physiological level. He

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contends that based on the arguments regarding the degree of harm that must be

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experienced to maintain a claim under the Fourteenth Amendment, Plaintiff included in

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his Supplement to Response to Motion to Dismiss Plaintiff’s First Amended Complaint,

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an analysis of the medications that Plaintiff was denied and documentation showing that

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denial of those medications results in changes to the chemical balance of the patient thus,

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resulting in “physical” harm. (See Doc. 39 at 4-6.) Plaintiff argues that Jett states “[a]

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prisoner need not show his harm was substantial; however, such would provide additional

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support for the inmate’s claim that the defendant was deliberately indifferent to his

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needs.” 439 F.3d at 1096. Plaintiff also relies on the dictionary definitions of “harm” as

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“injury, loss or detriment,” BLACK’S LAW DICTIONARY 285 (Pocket ed. 1996), and

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additional definitions such as “bodily harm” which is defined as “physical pain, illness,

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or impairment of the body” and “physical” which is defined as “material as opposed to

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mental or spiritual” and “of or relating to the body.” Id.; THE MERRIAM-WEBSTER

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DICTIONARY 524 (1974) respectively.

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objections.

Plaintiff repeats these arguments in his

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The Report and Recommendation observed that Plaintiff also stated that “[t]he

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extent to which the missed doses harmed Mr. Ledvina may never be determined.” (Doc.

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41 at 6; ref. Doc. 39 at 5.) In his objections, Plaintiff acknowledges that this is true

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because to know the extent to which the level of medicine in Plaintiff’s body had

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changed would have required a blood test as soon as he was released from custody and

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prior to taking any more medication. (Doc. 44 at 3.) But Plaintiff asserts that it is not

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speculative that the level of medication in his system changed as a result of his not

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receiving his medication and that [a]ny licensed physician would testify accordingly.”

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(Id.)

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The R & R found that the only harm alleged in the amended complaint is “much

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anxiety” precipitated by the Doe Defendants refusal to provide Plaintiff’s heart

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medication in a timely fashion. The Magistrate Judge concluded that Plaintiff fails to

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allege in his complaint any facts upon which a reasonable inference could be drawn that

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he did suffer non-de minimis harm. The Magistrate Judge noted that Plaintiff did not

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allege that he experienced any pain, or that he suffered further medical complications due

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to this anxiety. As Plaintiff points out in his objections, the R & R discusses the

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allegations in the supplemental brief.

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allegations as “merely a hypothesis of harms that could occur when the medications

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prescribed to Plaintiff are not taken” and notes that Plaintiff “does not allege that any of

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them did happen to him. In fact, the supplemental brief states, ‘[t]he extent to which the

The Magistrate Judge characterized the new

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missed doses harmed Mr. Ledvina may never be determined.’” (Id. at 5 (emphasis in

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original).)

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speculative and do not create a reasonable inference that Plaintiff suffered more than de

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minimis harm.

The R & R holds that the additional facts in the supplemental brief are

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The R & R adequately set out the standard of review on a Motion to Dismiss for

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failure to state a claim, and this Court need not repeat that standard here. But it is worth

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noting that “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Moreover, “[a] claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.”

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requirement,’ but it asks for more than a sheer possibility that a defendant has acted

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unlawfully.” Iqbal, 556 U.S. at 678. Determining plausibility is a “context-specific

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task. . .” that requires the court to “draw on its judicial experience and common sense.”

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Id. at 679. A complaint cannot survive dismissal where the court can only infer that a

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claim is merely possible rather than plausible. Id. . “The facts alleged must be sufficient

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to nudge the claims ‘across the line from conceivable to plausible.’” Solis v. City of

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Fresno, 2012 WL 868681, at *8 (E.D.Cal. Mar. 13, 2012 (quoting Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 547 (2007); see also Tesi v. Recon Trust NA, 2013 WL 2635613,

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*4 (D.Ariz. June 12, 2013).

Id.

“The plausibility standard is not akin to a ‘probability

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The Court agrees with the Magistrate Judge that even considering the allegations

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in the supplemental briefing, Plaintiff fails to state a claim. As Magistrate Judge Ferraro

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found, Plaintiff alleges only speculative injury.

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speculative that the level of medication in Plaintiff’s body changed, but this is not

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enough. It is insufficient to merely allege a change; without more, there is no allegation

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of anything more than de minimis harm. Moreover, according to the facts alleged in the

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FAC, Plaintiff was in the custody of Defendant for fewer than 16 hours and when he was

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released his medication was returned to him. He does not claim that he immediately

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Plaintiff now argues that it is not

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sought medical attention or that he experienced medical complications as a result of

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either the anxiety or the untimely medication. There is insufficient factual content to

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allow the Court to draw the reasonable inference that any Defendant may be liable for a

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Fourteenth Amendment violation.

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The Court overrules Plaintiff’s objections. Moreover, the Court finds that further

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amendment of the Complaint will not correct the deficiency. The Court will grant the

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Motion to Dismiss and terminate the action.

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IT IS ORDERED:

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(1)

The Report and Recommendation (Doc. 41) is adopted.

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(2)

Defendants Motion to Dismiss (Doc. 32) is granted; the remaining claims

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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.

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