Quezada v. Sherman et al
Filing
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FINDINGS and RECOMMENDATIONS to Grant in Part and Deny in Part Defendants' 41 Motion to Dismiss signed by Magistrate Judge Jennifer L. Thurston on 09/28/2021. Referred to Judge Drozd; Objections to F&R due within Twenty-One Days. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ALVARO QUEZADA,
Plaintiff,
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v.
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AKABIKE, et al.,
FINDINGS AND RECOMMENDATIONS
TO GRANT IN PART AND DENY IN PART
DEFENDANTS’ MOTION TO DISMISS
(Doc. 41)
Defendants.
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Case No. 1:18-cv-00797-DAD-JLT (PC)
21-DAY DEADLINE
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Before the Court is Defendants’ motion to dismiss Plaintiff’s third amended complaint.
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(Doc. 41.) For the reasons set forth below, the Court recommends that the motion be granted in
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part and denied in part.
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I.
LEGAL STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal
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sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a Rule
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12(b)(6) motion, the Court’s review is generally limited to the “allegations contained in the
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pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.”
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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir. 2008) (internal
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quotation marks and citations omitted). Dismissal is proper if there is a “lack of a cognizable legal
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theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.
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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court
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“accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light
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most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
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(9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners
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liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
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2010) (citation omitted). However, “the liberal pleading standard . . . applies only to a plaintiff’s
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factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989).
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II.
SUMMARY OF PLAINTIFF’S FACTUAL ALLEGATIONS
At the times relevant to this case, Plaintiff was incarcerated at Substance Abuse Treatment
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Facility and State Prison, Corcoran (SATF). (See generally Doc. 29.) While at SATF, Plaintiff
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suffered from degenerative disc disease and stenosis, which caused him back pain and affected
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his “ability to walk, stand, and . . . sit down for prolong[ed] periods” of time. (Id. at 7-8.)
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In 2017, over the span of several months, Plaintiff repeatedly requested that his medical
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file be updated to reflect his medical condition and disability; but Dr. Akabike refused. (Id.) As a
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result, prison officials assigned Plaintiff to a dining hall job and “top-tier” housing, both of which
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were inappropriate for his condition. (Id.) Plaintiff alerted Dr. Akabike that he was unable to
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perform his work duties because of his disability. (Id. at 9.) After evaluating Plaintiff, Dr.
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Akabike refused to update Plaintiff’s medical file to reflect his disability, and she denied him
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adequate pain medication and treatment. (Id.)
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On June 28, 2017, Plaintiff fell twice while walking down the stairs from his top-tier cell.
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(Id. at 10.) Plaintiff fell because of his medical condition, which caused his “right leg to give out.”
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(Id.) After the falls, Dr. Akabike continued to refuse to update Plaintiff’s medical file and to
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adequately treat his pain, and she declined to provide him mobility accommodations such as a
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cane or wheelchair. (Id. at 10-11.)
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After Plaintiff fell the first time, Plaintiff’s cellmate (whom Plaintiff considered to be his
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“caretaker”) informed Correctional Officer Harris of the accident and requested that both he and
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Plaintiff be moved to a lower-tier bunk. (Id. at 14.) Harris and Correctional Officer Ceja “had
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firsthand knowledge of plaintiff’s severe medical conditions and disabilities” because they
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“observed plaintiff struggling to walk” every day, and they “witnessed [him] being assisted” by
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his cellmate. (Id.) After Plaintiff’s cellmate requested that he and Plaintiff be moved to a lower-
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tier cell, Harris and Ceja ordered the cellmate, who is able bodied, to move to a lower cell, but
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forced Plaintiff to remain at his top-tier cell. (Id. at 14-16.)
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Officers Harris and Ceja then “forced plaintiff” “to go down the stairs or else be
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punished.” (Id. at 15, 17.) While walking down the stairs, Plaintiff fell the second time, causing
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him to be “severely injured.” (Id. at 17.) Plaintiff yelled for medical assistance, but Ceja “walked
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over to the edge of the top tier and looked at plaintiff on the floor in serious pain, . . . stated . . .
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that plaintiff was ‘faking’ then waved off plaintiff and instructed the other [correctional officers]
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. . . to continue searching” his pod. (Id.) “Immediately after,” other inmates began yelling, “man
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down,” at which point Harris “ran into the dayroom and saw plaintiff on the floor . . . and . . .
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activated his alarm for a medical emergency response.” (Id.) Plaintiff was transferred to a hospital
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and treated for his injuries. Dr. Tung recommended surgery. (Id. at 18.)
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Plaintiff was eventually transferred to R.J. Donavan Correctional Facility (RJD), where he
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was “immediately provided” “proper pain treatment . . . and . . . an ADA appliance” for his
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disability. (Id. at 11-12.)
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III.
DISCUSSION
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The Court has screened Plaintiff’s third amended complaint pursuant to 28 U.S.C. §
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1915A(a) and found it states cognizable claims of deliberate indifference to serious medical needs
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in violation of the Eighth Amendment. (Docs. 30, 36.) Plaintiff’s operative claims are based on
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the following sets of alleged facts:
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Claim 1: Dr. Akabike failed to properly treat Plaintiff for his degenerative disc disease
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and stenosis, including by refusing to update his medical file to reflect his condition and
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by failing to provide him proper medication and accommodations, which resulted in
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unnecessary pain and caused Plaintiff to fall twice while walking down the stairs.
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Claim 2: After Plaintiff fell the first time, Correctional Officers Ceja and Harris refused to
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move Plaintiff to a lower-tier cell and forced him to again walk down the stairs, causing
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him to fall the second time.
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Claim 3: After Plaintiff fell the second time, Correctional Officer Ceja refused to activate
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a medical emergency alarm.
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Defendants move to dismiss the third amended complaint on the grounds that (1) Plaintiff
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fails to plead a cognizable claim of deliberate indifference, and (2) Defendants are entitled to
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qualified immunity. (Doc. 41 at 1.)
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For the reasons set forth below, the Court finds that Plaintiff states cognizable claims with
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respect to Claims 1 and 2 but fails to state a cognizable claim with respect to Claim 3. The Court
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is unable to decide on the pleadings whether Defendants are entitled to qualified immunity due to
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disputes of fac; thus, it denies without prejudice Defendants’ motion to dismiss on qualified
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immunity grounds.
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A. Deliberate Indifference to Serious Medical Needs
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“Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to
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[a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014)
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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “This is true whether the indifference is
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manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
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intentionally denying or delaying access to medical care. . .” Estelle, 429 U.S. at 104-05. “A
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medical need is serious if failure to treat it will result in significant injury or the unnecessary and
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wanton infliction of pain.” Peralta, 744 F.3d at 1081 (internal quotation marks and citations
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omitted). “A prison official is deliberately indifferent to that need if he ‘knows of and disregards
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an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837
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(1994)).
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The test for deliberate indifference to medical needs is two-pronged and has objective and
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subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To establish
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a deliberate-indifference claim, a prisoner must first “show a serious medical need by
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demonstrating that failure to treat [the] prisoner’s condition could result in further significant
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injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the
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defendants’ response to the need was deliberately indifferent.” Id. (internal quotation marks and
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citation omitted).
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As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need
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include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and
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worthy of comment or treatment; the presence of a medical condition that significantly affects an
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individual’s daily activities; or the existence of chronic and substantial pain.’” Colwell v.
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Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted).
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As to the second, subjective prong, deliberate indifference “describes a state of mind more
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blameworthy than negligence” and “requires more than ordinary lack of due care for the
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prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation
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marks and citation omitted). Deliberate indifference exists where a prison official “knows that
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[an] inmate[ ] face[s] a substantial risk of serious harm and disregards that risk by failing to take
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reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a
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purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm
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caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not
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show his harm was substantial; however, such would provide additional support for the inmate’s
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claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091,
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1096 (9th Cir. 2006) (citation omitted).
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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060
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(9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from
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which the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must
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also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official]
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should have been aware of the risk, but was not, then the [official] has not violated the Eighth
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Amendment, no matter how severe the risk.’” Id. (internal quotation marks and citation omitted).
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i. Claim 1
In his complaint, Plaintiff alleges he suffered from degenerative disc disease and stenosis,
which caused him back pain and affected his ability to walk, stand, and sit for prolonged periods
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of time. (Doc. 29 at 7-8.) These allegations satisfy the first, objective prong of a deliberate
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indifference claim. See Colwell, 763 F.3d at 1066.
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Defendants argue that Plaintiff fails to plead facts sufficient to satisfy the second,
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subjective prong with respect to Dr. Akabike. (See Doc. 41 at 10-11). The Court disagrees.
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Plaintiff alleges Dr. Akabike, after evaluating Plaintiff, refused to provide him proper pain
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medication or accommodations or to update his medical chart to reflect his condition. (Doc. 29 at
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7-9.) Plaintiff further alleges that, after his condition caused him to fall twice while walking down
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the stairs, Dr. Akabike continued to deny him proper treatment or accommodations or to update
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his chart. (Id. at 10-11.) As soon as Plaintiff was transferred R.J. Donovan Correctional Facility,
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prison officials allegedly provided him proper treatment and accommodations. (Id. at 11-12.)
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Although, as Defendants point out (Doc. 41 at 10-11), a mere misdiagnosis or difference in
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medical opinion does not establish deliberate indifference, Estelle, 429 U.S. at 106, Toguchi, 391
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F.3d at 1059-60, Plaintiff’s allegation regarding the difference in treatment at SATF and RJD at
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least supports his claim that Dr. Akabike was deliberately indifferent to his needs.
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According to Defendants, “Plaintiff only alleges a single instance when he was actually
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seen by Dr. Akabike before the alleged falls,” which occurred on May 11, 2017, and that this one
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evaluation is insufficient to show that the doctor was deliberately indifferent. (Doc. 41 at 11.) As
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an initial matter, Plaintiff also alleges that he “repeatedly informed” Dr. Akabike of his condition
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and the inaccuracy of his medical file, such as in writing. (Doc. 29 at 7-9.) Thus, liberally
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construing his allegations, Plaintiff alleges that Dr. Akabike’s actions or inactions were in
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response to more than just the May 11, 2017 visit.
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Second, Defendants point to no authority that establishes that a medical professional
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cannot be deliberately indifferent based on a single encounter. Clearly, if a person were to show
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up at an emergency room with an obviously life-threatening gunshot wound, and a doctor were to
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refuse to treat the person despite seeing the obvious injury, that one encounter would be enough
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to establish, at a minimum, deliberate indifference. In other words, whether the single encounter
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between Plaintiff and Dr. Akabike on May 11, 2017, is enough to establish deliberate indifference
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is a fact-specific matter. Plaintiff alleges that Dr. Akabike refused to update his medical file and
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to properly treat his condition, despite knowing of that condition after evaluating him on May 11,
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2017. This is a factual contention that the Court must accept as true on a motion to dismiss. See
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Iqbal, 556 U.S. at 678.
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Defendants also argue that Plaintiff fails to show that he was harmed as a result of Dr.
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Akabike’s actions. (Doc. 41 at 12-13.) The Court again disagrees. Plaintiff alleges that Dr.
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Akabike’s failure to properly treat his condition resulted in the unnecessary infliction of pain.
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(Doc. 29 at 11-12.) In addition, Plaintiff alleges the doctor’s refusal to update his medical file
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prevented him from being moved to a lower-tier cell. (Id. at 7, 10, 12-13.) As a result of his top-
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tier housing, Plaintiff was forced to walk down stairs, causing him to fall twice on June 28, 2017.
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(Id. at 10, 12-13.) These allegations are sufficient to establish a causal connection between Dr.
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Akabike’s actions or inactions and the harm he suffered.1
When liberally construed and viewed in the light most favorable to Plaintiff, Plaintiff’s
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factual allegations establish a deliberate indifference claim with respect to Claim 1 that is
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plausible on its face. See Iqbal, 556 U.S. at 678; Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,
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998 (9th Cir. 2010); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
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ii. Claim 2
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In his complaint, Plaintiff alleges Correctional Officers Ceja and Harris knew about his
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medical condition and disability because they regularly saw him struggling to walk and being
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assisted by his cellmate. (Doc. 29 at 14.) Plaintiff further alleges that, after he fell the first time,
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his cellmate informed the officers about the fall and requested that he and Plaintiff be moved to a
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lower-tier cell. (Id. at 14-15.) The officers, however, responded by moving only the cellmate.
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(Id.) Plaintiff alleges the officers then forced him to walk down the stairs from his upper-tier cell,
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which caused him to fall the second time. (Id. at 15, 17.) Based on these allegations, the Court
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finds that Plaintiff states cognizable claims of deliberate indifference against Defendants Ceja and
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Harris.
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Defendants also argue that Plaintiff fails to state a claim because he does not explicitly plead that, had Dr. Akabike
updated his medical chart as he requested, it “would have ensured that he . . . received a lower tier bed assignment.”
(Doc. 41 at 12.) This argument is splitting hairs, at least when analyzing the allegations of a pro se plaintiff at the
pleading stage. When liberally construed, Plaintiff’s allegations are sufficient to establish the requisite causal
connection.
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Defendants argue that Plaintiff fails to satisfy the first, objective prong of a deliberate
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indifference claim with respect to Claim 2. (Doc. 41 at 7-8.) The Court does not agree. To satisfy
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the objective prong, Plaintiff need only show that he had a serious medical condition and that,
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because of that condition, he faced a substantial risk of serious harm by being housed in an upper-
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tier cell. See Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). Plaintiff alleges he has
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degenerative disc disease and stenosis, which made it difficult for him to walk and caused him to
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fall while walking down the stairs. Courts have frequently found that moving an inmate to a
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housing assignment inconsistent with his medical needs can form the basis of a deliberate
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indifference claim. See, e.g., id.; Binns v. Asuncion, No. 2:16-cv-05481-DSF-SHK, 2020 WL
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4032288, at *8 (C.D. Cal. 2020), report and recommendation adopted, 2020 WL 4060164 (C.D.
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Cal. 2020).
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With respect to the second prong, Defendants argue that Plaintiff’s allegations are
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conclusory and “amount to nothing more than bare assertions about what Defendants Harris and
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Ceja ‘should have known.’” (Doc. 41 at 8-9.) However, as explained above, Plaintiff alleges the
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defendants knew about his disability because they regularly saw him struggling to walk and being
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assisted by his cellmate, and because his cellmate informed them that he had fallen while walking
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down the stairs. Plaintiff’s contention that Defendants knew about his disability, then, is not
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conclusory—it is supported by specific factual allegations that, if proven, provide circumstantial
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evidence of their knowledge. See Lolli v. Cty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003)
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(“deliberate indifference . . . may be shown by circumstantial evidence when the facts are
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sufficient to demonstrate that a defendant actually knew of a risk of harm”). Defendants’ implied
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contention that it would have been improbable for the officers to “have observed [Plaintiff]
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walking a particular way among . . . hundreds of inmates” is, itself, a factual contention. While it
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may undermine the probability or believability of Plaintiff’s factual allegations, it does not turn
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those allegations into conclusory statements.
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Defendants also contend that they are not liable for failing to move Plaintiff to a lower-tier
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cell because they lacked the official authority to do so. (Doc. 41 at 9.) Defendants point to the
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CDCR Operations Manual, which provides that only a correctional lieutenant or sergeant or
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someone with a higher classification may authorize a housing assignment change. (Id.)
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Defendants’ argument is belied by Plaintiff’s contention that, upon receiving a cell-change
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request from Plaintiff’s cellmate, Defendants moved the cellmate, but not Plaintiff, to a lower-tier
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cell. (Doc. 29 at 14-16.) In other words, Defendants’ official authority is beside the point if they
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had the practical ability to move Plaintiff to a lower cell or to otherwise mitigate his risk of
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serious harm. See McDonald v. Yates, No. 1:09-cv-00730-LJO-SKO, 2012 WL 6514658, at *7
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(E.D. Cal. 2012) (“even if [the d]efendants did not have the final authority to order or approve a
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bed move, they were still required to take reasonable action once . . . placed on notice that [the
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p]laintiff had a medical need for a lower bunk”), report and recommendation adopted, 2013 WL
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238904 (E.D. Cal. 2013).
Lastly, Defendants contend that, “[a]s noted by the Court in its [screening order] . . . ,
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Defendants Harris and Ceja relied on a doctor’s diagnosis . . . , thereby evidencing the
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reasonableness of their conduct.” (Doc. 41 at 9.) However, in its order, the Court did not find that
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Ceja and Harris did, in fact, rely on a doctor’s diagnosis. Rather, the Court stated, “Plaintiff’s
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allegation that Dr. Akabike never updated his medical file to reflect his disability runs counter to
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his [deliberate indifference] claim” against the officers, because “if prison guards rely on a
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doctor’s diagnosis in making a housing assignment, such reliance is evidence that the officers did
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not act unreasonably.” (Doc. 30 at 8.) From Plaintiff’s complaint, though, it is unclear whether
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Defendants actually relied on Dr. Akabike’s diagnosis or whether, more generally, they acted
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reasonably in response to Plaintiff’s first fall. The Court finds that these are factual matters that it
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is unable to decide on a motion to dismiss.
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When liberally construing Plaintiff’s allegations, and specifically considering his
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allegations that (1) Officers Ceja and Harris personally witnessed his inability to walk properly
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and (2) were informed of his first fall, yet (3) refused to move him to a lower-tier bunk and (4)
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forced him to again walk downstairs, the Court finds that Plaintiff states deliberate indifference
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claims against the officers that are plausible on their face. See Iqbal, 556 U.S. at 678; Daniels-
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Hall, 629 F.3d at 998; Hebbe, 627 F.3d at 342).
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iii. Claim 3
As explained above, in the medical context, the second prong of a deliberate indifference
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claim “requires showing: (a) a purposeful act or failure to respond to a prisoner’s pain or possible
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medical need and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation
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omitted). In his complaint, Plaintiff alleges that after he fell down the stairs the second time,
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Officer Ceja “looked at [him] on the floor[,] . . . stated . . . that [he] was ‘faking,’” and refused to
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call for medical assistance. (Doc. 1 at 17.) This allegation shows a purposeful act or failure to
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respond to Plaintiff’s pain or possible medical need.
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Defendants argue that Plaintiff fails to show that he was harmed as a result of Ceja’s
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alleged (mis)conduct. (See Doc. 41 at 10.) The Court agrees. Plaintiff alleges that “immediately
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after” Ceja waved him off, other inmates yelled “man down,” then Officer Harris “activated his
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alarm for a medical emergency response.” (Doc. 29 at 17.) Plaintiff was then transferred to a
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hospital for further treatment. (Id.) Plaintiff fails to show that the mere moments in between
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Ceja’s inaction and Harris’s action caused him any additional injury.
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In his opposition, Plaintiff does not meaningfully dispute Defendants’ contention that he
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fails to show that he was harmed as a result of Ceja’s alleged refusal to activate his medical
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emergency alarm, when Harris activated his alarm immediately thereafter. Instead, Plaintiff
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focuses on Ceja’s alleged misconduct itself. (See, e.g., Doc. 46 at 5.) But as explained above, case
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law clearly requires a plaintiff to show that he was harmed as a result of a defendant’s deliberate
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indifference. Because Plaintiff does not make this showing with respect to Claim 3, he fails to
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establish a cognizable deliberate indifference claim with respect to Claim 3. See Shapley v.
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Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (“mere delay” of
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treatment, without harm resulting therefrom, “is insufficient to state a claim of deliberate medical
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indifference”).
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B. Qualified Immunity
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A defendant is entitled to “qualified immunity if one of two conditions are met. First,
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immunity will be applied if the plaintiff has not ‘alleged’ . . . facts that would make out a
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constitutional violation. . . Second, even if the Plaintiff has shown such a violation, the defendant
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is entitled to qualified immunity if the constitutional right allegedly violated was not ‘“clearly
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established” at the time of defendant’s alleged misconduct.’” A.D. v. California Highway Patrol,
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712 F.3d 446, 453-54 (9th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
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District courts have “discretion in deciding which of the[se] two prongs . . . should be addressed
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first.” Pearson, 555 U.S. at 236.
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Regarding the second prong, “[f]or a constitutional right to be clearly established, its
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contours must be sufficiently clear that a reasonable official would understand that what he is
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doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and
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citation omitted). Courts “do not require a case directly on point, but existing precedent must have
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placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
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741 (2011) (citations omitted). “[A] plaintiff must prove that precedent on the books at the time
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the officials acted would have made clear to [them] that [their actions] violated the Constitution.”
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Hamby v. Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016) (internal quotation marks and citation
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omitted).
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i. Claim 2
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As explained above, the Court finds that Plaintiff states cognizable deliberate indifference
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claims against Officers Ceja and Harris for their alleged refusal to move Plaintiff to a lower bunk,
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and forcing him to walk downstairs, after he fell the first time. Defendants contend that they are
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entitled to qualified immunity for this alleged conduct because they “are unaware of any authority
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that . . . deems it unreasonable for Harris and Ceja to rely on the judgment of the medical doctors
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who had authored his medical records or who had released him back to his cell without any
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medical accommodation after his alleged first fall.” (Doc. 41 at 14.)
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If medical doctors did, in fact, release Plaintiff back to his cell without any
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accommodation after his first fall, Officers Ceja and Harris may be entitled to qualified immunity
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for refusing to move Plaintiff to a lower-tier cell, particularly if they relied on the doctors’
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evaluations in making that decision. See Akhtar v. Mesa, No. 2:09-cv-2733-MCE-AC, 2014 WL
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6946142, at *12 (E.D. Cal. 2014) (correctional officer did not violate clearly established law by
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moving an inmate to a housing assignment inconsistent with his medical needs, when the officer
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“rel[ied] on the judgment of the medical doctors who had authored . . . the [inmate’s] latest
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[accommodation] chrono”), report and recommendation adopted as modified, 2015 WL
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12752691 (E.D. Cal. 2015). However, it is unclear from the complaint whether Dr. Akabike or
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another doctor evaluated Plaintiff after his first fall (but before his second fall) and explicitly
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decided to release him back to his cell without any accommodation. Assuming a doctor did make
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such a decision, it is also unclear whether Officers Ceja and Harris actually relied on that decision
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in deciding not to move Plaintiff to a lower-tier cell and ordering him to walk downstairs.
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Moreover, courts have found that, despite the lack of a valid medical chrono, the law is
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“sufficiently clear that a reasonable officer, once placed on notice as to the existence of a medical
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issue precluding . . .upper tier housing, would have known that he was required to take reasonable
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measures to abate the risk of harm.” McDonald, 2012 WL 6514658, at *9. It is unclear from the
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complaint whether Defendants took any measures in response to allegedly being placed on notice
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of Plaintiff’s medical condition and first fall (besides moving his cellmate to a lower-tier cell).
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The Court, therefore, is unable to decide the matter of qualified immunity without a more
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developed factual record. Although, when liberally construing his allegations, the Court finds that
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Plaintiff states cognizable claims against Officers Ceja and Harris, see Section III.A.2, supra, the
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Court is unable to determine whether the officers are entitled to qualified immunity without
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knowing, for example, whether they relied on a doctor’s diagnosis or decision not to provide
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Plaintiff any housing accommodation. See Brown v. Grove, 647 F. Supp. 2d 1178, 1183 (C.D.
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Cal. 2009) (“fact-intensive issues pertinent to a qualified immunity defense, particularly whether
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the defendant’s conduct was reasonable, are better left to summary judgment”) (citation omitted).
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Therefore, the Court denies Defendants’ motion to dismiss on qualified immunity grounds, with
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the acknowledgement that Defendants may reraise the matter at a later stage.
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IV.
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CONCLUSION AND RECOMMENDATIONS
For the reasons set forth above, the Court finds that Plaintiff states cognizable claims of
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deliberate indifference against Defendants with respect to Claims 1 and 2 but fails to state a
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cognizable claim against Defendant Ceja with respect to Claim 3. Accordingly, the Court
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RECOMMENDS that:
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1. Defendants’ motion to dismiss Plaintiff’s third amended complaint (Doc. 41) be
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GRANTED IN PART and DENIED IN PART, as specified below.
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2. Plaintiff’s claim of deliberate indifference against Defendant Ceja for his alleged
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refusal to activate his medical emergency alarm (Claim 3) be DISMISSED; and,
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3. Plaintiff’s remaining claims of deliberate indifference against Defendants (Claims 1
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and 2) be allowed to proceed.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of
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service of these Findings and Recommendations, the parties may file written objections with the
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Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and
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Recommendations.” Failure to file objections within the specified time may result in waiver of
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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
September 28, 2021
_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE
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