Quezada v. Sherman et al
Filing
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ORDER ADOPTING 48 Findings and Recommendations and GRANTING in Part Defendant's 41 Motion to Dismiss, signed by District Judge Dale A. Drozd on 11/15/2021. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALVARO QUEZADA,
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Plaintiff,
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v.
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AKABIKE, et al.,
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No. 1:18-cv-00797-DAD-JLT (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING IN
PART DEFENDANTS’ MOTION TO
DISMISS
Defendants.
(Doc. Nos. 41, 48)
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Plaintiff Alvaro Quezada is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action brought under 42 U.S.C. § 1983. This matter was referred to a United
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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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This matter proceeds on plaintiff’s third amended complaint (Doc. No. 29) on claims of
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deliberate indifference to serious medical needs against defendants Akabike, Ceja, and Harris.
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(Doc. No. 36.) On September 29, 2021, the assigned magistrate judge issued findings and
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recommendations, recommending that defendants’ motion to dismiss be granted in part and
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denied in part. (Doc. No. 48.) (Id. at 3–4.) The magistrate judge found that plaintiff stated
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cognizable claims of deliberate indifference with respect to his first and second claims, but failed
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to state a cognizable claim with respect to his third claim because plaintiff failed to allege facts
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showing that he was harmed as a result of defendant Ceja’s alleged refusal to activate his medical
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emergency alarm after plaintiff’s second fall when defendant Harris activated his alarm
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immediately thereafter. (Id. at 3–4, 10.) Regarding plaintiff’s deliberate indifference claim
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related to defendants Ceja and Harris’s refusal to move plaintiff to a lower-tier cell and forcing
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him to walk down stairs where he fell a second time, the magistrate judge found that a more
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developed factual record is required to conclusively determine whether defendants Ceja and
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Harris are entitled to qualified immunity. (Id. at 11–12.) The findings and recommendations
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were served on the parties and provided 21 days to file objections thereto. (Id. at 13.) Plaintiff
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filed objections on October 25, 2021, and defendants filed a response thereto on November 8,
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2021. (Doc. Nos. 49, 51.) Defendants have not filed objections to the pending findings and
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recommendations, and the time to do so has passed.
Although plaintiff objects to the magistrate judge’s recommendation that his third claim
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for relief be dismissed, plaintiff does not meaningfully call into question the finding that his third
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amended complaint fails to plead facts, if proven, showing that plaintiff was harmed as a result of
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defendant Ceja’s alleged failure to activate his medical emergency alarm. In his objections,
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plaintiff conflates his second and third claims, and focuses on defendants’ alleged misconduct, as
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opposed to the harm allegedly caused by the misconduct specifically alleged in his third claim for
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relief. (See Doc. No. 49 at 2–6.) Where plaintiff does allege harm, his allegations are conclusory
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and not supported by adequate factual allegations. (Id.) See Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.”) (citation omitted). Given that plaintiff has not only failed to plead
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sufficient facts in his claim 3 showing that he was harmed as a result of defendant Ceja’s alleged
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actions or inaction in his third amended complaint, but also has failed to suggest that he could
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allege such facts in his opposition to defendants’ motion to dismiss and in his objections to the
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magistrate judge’s findings and recommendations, the court finds that plaintiff would be unable
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to plead sufficient facts to cure this deficiency in a fourth amended complaint. Therefore,
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because the granting of further leave to amend would be futile, plaintiff’s third claim will be
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dismissed without leave to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012).
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Lastly, plaintiff’s objection to the magistrate judge’s recommendation regarding qualified
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immunity is misplaced. The magistrate judge recommended that defendants’ motion to dismiss
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on qualified-immunity grounds be denied. (Doc. No. 48 at 12.) Such denial at the pleading stage
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does not preclude defendants from moving for summary judgment on qualified immunity grounds
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following the conducting of discovery in this action.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a
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de novo review of this case. Having carefully reviewed the file, including plaintiff’s objections,
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the court finds the findings and recommendations to be supported by the record and proper
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analysis.
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Accordingly,
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1.
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The findings and recommendations issued on September 29, 2021 (Doc. No. 48)
are adopted in full;
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Defendants’ motion to dismiss plaintiff’s third amended complaint (Doc. No. 41)
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is granted in part and denied in part as follows:
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a.
Plaintiff’s claim of deliberate indifference against defendant Ceja based
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upon defendant Ceja’s alleged refusal to activate his medical emergency
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alarm is dismissed without leave to amend;
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b.
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Plaintiff’s remaining claims of deliberate indifference will be permitted to
proceed with defendants’ motion to dismiss otherwise being denied; and
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This case is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:
November 15, 2021
UNITED STATES DISTRICT JUDGE
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