Brady K. Armstrong v. Yates et al

Filing 53

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 47 Motion for Default Judgment, signed by Magistrate Judge Dennis L. Beck on 7/22/2013, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRADY K. ARMSTRONG,

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Plaintiff,

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v.

Case No. 1:10-cv-2380 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT
(Document 47)

S. DISHMAN, et al.,

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Defendants.

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Plaintiff Brady K. Armstrong (“Plaintiff”), a California state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 22, 2010.

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Pursuant to the Court’s November 2, 2011, order, the action is proceeding against Defendant S.

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Dishman for retaliation in violation of the First Amendment and deliberate indifference in violation

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of the Eighth Amendment. All other Defendants and claims have been dismissed.
Plaintiff filed a Motion for Default Judgment on January 22, 2013, and the matter was

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referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Defendant Dishman has not appeared in this action or otherwise contacted the Court.

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I.

LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) provides:

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(2)

By the Court. In all other cases, the party must apply to the court for a default
judgment. A default judgment may be entered against a minor or incompetent person
only if represented by a general guardian, conservator, or other like fiduciary who has
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appeared. If the party against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative must be served with
written notice of the application at least 7 days before the hearing. The court may
conduct hearings or make referralsBpreserving any federal statutory right to a jury
trialBwhen to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of any allegation by
evidence; or (D) investigate any other matter.

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“Upon default, the well-pleaded allegations of a complaint relating to liability are taken as

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true.” Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir.

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1983); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Thus, “[a]t the

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time of entry of default, the facts alleged by the plaintiff in the complaint are deemed admitted.” 10

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J. Moore, Moore's Federal Practice ' 55.11 (3d ed. 2000).

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II.

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ALLEGATIONS IN THE COMPLAINT
Plaintiff is currently incarcerated at the California Substance Abuse Treatment Facility in

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Corcoran, California. The events at issue occurred while Plaintiff was incarcerated at Pleasant

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Valley State Prison (“PVSP”). Defendant Dishman was a registered nurse at PVSP at the time of the

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events at issue.

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Plaintiff alleges that on June 9, 2009, Defendant Dishman attempted to harm him by

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intentionally providing him with another inmate’s medication, and then with his own medication. In

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his grievance, incorporated into the complaint by reference, Plaintiff explains that he told Defendant

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Dishman that he did not take the other inmate’s medication, but she responded by stating that

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Plaintiff’s doctor changed the medication and then forced him to take it. As a result, Plaintiff

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suffered severe chest pain, dizziness, violent nausea and stomach sickness. Plaintiff contends that

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this was done in retaliation for Plaintiff filing a prior lawsuit against Defendant Dishman in the

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United States District Court, Eastern District of California. Compl. ¶ 40, Ex. 11.

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III.

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DISCUSSION
Pursuant to the return of waiver of service filed with the Court on May 1, 2012, Defendant

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Dishman acknowledged receipt of the request for waiver of service and the complaint on March 29,

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2012. ECF No. 41.

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The Clerk of Court entered default against Defendant Dishman on November 9, 2012. ECF
No. 46.

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There is no indication that Defendant is an infant or incompetent person, or is in the military
service or otherwise exempted under the Servicemembers Civil Relief Act of 2003.

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Accepting the allegations in the complaint as true, the Court finds that Plaintiff would be
entitled to relief for violations of both the Eighth Amendment and First Amendment.1

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A.

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For claims arising out of medical care in prison, Plaintiff “must show (1) a serious medical

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Eighth Amendment

need by demonstrating that failure to treat [his] condition could result in further significant injury or

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the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the need

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was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett

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v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s

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pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122

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(citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which

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entails more than ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012)

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(citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. Deliberate indifference may be

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shown “when prison officials deny, delay or intentionally interfere with medical treatment, or it may

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be shown by the way in which prison physicians provide medical care.” Wilhelm, 680 F.3d at 1122

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(citing Jett, 439 F.3d at 1096) (internal quotation marks omitted). The needless suffering of pain

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may be sufficient to demonstrate further harm. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.

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2002).
Here, Plaintiff alleges that Defendant Dishman forced him to take another inmate’s

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medication, despite Plaintiff telling her that he did not take that medication. After making him take

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the other inmate’s medication, she forced Plaintiff to take his own medication. As a result, Plaintiff

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suffered severe chest pain, dizziness, violent nausea and stomach sickness.

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The Court did not deem a hearing under Rule 55(b)(2) necessary.

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These allegations are sufficient to demonstrate that Plaintiff would be entitled to relief under
the Eighth Amendment.

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B.

First Amendment

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Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

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petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th

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Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did

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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-

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68 (9th Cir. 2005).

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Plaintiff’s allegations that Defendant Dishman intentionally forced him to take another

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inmate’s medication, and then his own, in retaliation for a prior lawsuit, are sufficient to demonstrate

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that he would be entitled to relief under the Fourteenth Amendment.

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C.

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Plaintiff’s complaint establishes that he was subject to a single act by Defendant Dishma n

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Damages

that caused physical injury.

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Plaintiff requests $250,000.00 in damages. However, the Court finds that an award of

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$2,500.00 is appropriate. The award of nominal damages in section 1983 cases is mandatory as

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“symbolic vindication” of a plaintiff’s constitutional rights, whether or not he has been physically

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injured. Schneider v.County of San Diego, 285 F.3d 784, 794 (9th Cir. 2002). “[N]ominal damages

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must be awarded if a plaintiff proves a violation of his constitutional rights.” Estate of Macias v.

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Ihde, 219 F.3d 1018, 1028 (9th Cir. 2000).

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IV.

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FINDINGS AND RECOMMENDATIONS
Based on the above, the Court RECOMMENDS that judgment be entered in this action

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against Defendant Dishman and in favor of Plaintiff, and RECOMMENDS that damages in the total

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amount $2,500.00 awarded.
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This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. ' 631(b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after being served with these Findings and Recommendations, a party may

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file written objections with the Court. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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/s/ Dennis L. Beck

July 22, 2013

D C_Si gnat ue EN :
EA
r- D

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UNITED STATES MAGISTRATE JUDGE
3b142a

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