Walker v. Whiting et al

Filing 30

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/13/2015 ORDERING the Clerk to assign a district judge to this action; AND RECOMMENDING that defendant Massa's 23 motion to dismiss be granted and that Massa be dismissed from this action with prejudice. Assigned and referred to Judge Troy L. Nunley; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN WALKER,

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No. 2:14-cv-2064 CKD P
Plaintiff,

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v.

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WHITING, et al.,

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ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.

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I. Introduction
Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42

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U.S.C. § 1983. This action proceeds on the complaint filed September 5, 2014 (ECF No. 1),

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which was ordered served on six defendants: Lee, Bilgera, Whiting, Johns, Blanco, and Massa.

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(ECF No. 11.) Plaintiff alleges that defendants violated his rights under the Eighth Amendment

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by failing to provide a medically necessary lower bunk, which caused him to fall from a top bunk

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and sustain injuries.
Before the court is defendant Massa’s motion to dismiss the complaint under Federal Rule

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of Civil Procedure 12(b)(6) for failure to state a claim against him.1 (ECF No. 23.) Plaintiff has

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filed an opposition (ECF No. 26), and Massa has filed a reply (ECF No. 26). Having carefully

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Defendants Blanco, Bilgera, Johns, and Whiting have answered the complaint (ECF Nos. 16,
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considered the record and the applicable law, the undersigned will recommend that Massa’s

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motion be granted.

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II. Standards for a Motion to Dismiss

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it

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must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something

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more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable

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right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.

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235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id.

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In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976),

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construe the pleading in the light most favorable to the party opposing the motion, and resolve all

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doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S.

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869 (1969). The court will “‘presume that general allegations embrace those specific facts that

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are necessary to support the claim.’” National Organization for Women, Inc. v. Scheidler, 510

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U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

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Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972).

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In ruling on a motion to dismiss, the court may consider facts established by exhibits

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attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

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The court may also consider “documents whose contents are alleged in a complaint and whose

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authenticity no party questions, but which are not physically attached to the pleading[.]” Branch

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v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Gailbraith v. County
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of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002); see also Steckman v. Hart Brewing Co., Inc.,

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143 F.3d 1293, 1295-96 (9th Cir. 1998) (on Rule 12(b)(6) motion, court is “not required to accept

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as true conclusory allegations which are contradicted by documents referred to in the complaint.”)

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The court may also consider facts which may be judicially noticed, Mullis v. United States

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Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including

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pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798

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F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions “cast in the form of

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factual allegations.” Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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III. Allegations

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Plaintiff alleges that while he was incarcerated at the Sacramento County Jail in 2014, he

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had a medical chrono for a lower bunk due to his health issues and recent stroke. After he was

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assigned a top bunk, he informed defendant correctional officers Lee, Bilgera, Whiting, Johns,

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and Blanco about the chrono, but they did nothing. (ECF No. 1.)

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Defendant Massa was a correctional Lieutenant who worked on the third floor of the jail,

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along with the other defendants. (ECF No. 1 at 3.) After showing his lower bunk chrono to the

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other defendants, plaintiff notified Massa, who “verified the medical order again, then notified the

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custody staff the very same day.” (ECF No. 1 at 4.) An attached record shows that Massa, a

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supervisor, reviewed plaintiff’s June 8, 2014 administrative grievance requesting a lower bunk.

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(Id. at 12.) Massa noted: “On 6/10/14 confirmed LBTR chrono with medical. Custody staff

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notified same date.” (Id.)

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“Even after receiving a copy of the medical order and being contacted by a superior

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officer the custody staff refused to move plaintiff on 6/10/14,” plaintiff alleges. (Id. at 4.) On

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June 14, 2014, he fell while trying to climb to the upper bunk and was injured. (Id.) “Plaintiff

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was seen by medical staff for [his] leg injury. Medical informed the custody staff that Plaintiff

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needed to be moved. Plaintiff was not moved.” (Id.)

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On June 15, 2014, plaintiff filed another medical grievance. (Id. at 4-5.) On June 17,

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2014, “Lt. Rider called custody in response to grievance and ordered Deputy Lee to move

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Plaintiff” to a bottom bunk. (Id. at 5.)
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IV. Standard for Deliberate Indifference

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The Eighth Amendment’s prohibition on cruel and unusual punishment imposes on prison

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officials, among other things, a duty to “take reasonable measures to guarantee the safety of the

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inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1991) (quoting Hudson v. Palmer, 468 U.S.

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517, 526-27 (1984)). “[A] prison official violates the Eighth Amendment when two requirements

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are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious'[.] For a claim ...

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based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions

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posing a substantial risk of serious harm.” Id. at 834. Second, “[t]o violate the Cruel and

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Unusual Punishments Clause, a prison official must have a ‘sufficiently culpable state of mind’ ...

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[T]hat state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. The prison

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official will be liable only if “the official knows of and disregards an excessive risk to inmate

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health and safety; the officials must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at

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837.

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“[W]hen a supervisor is found liable based on deliberate indifference, the supervisor is

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being held liable for his or her own culpable action or inaction, not held vicariously liable for the

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culpable action or inaction of his or her subordinate.” Starr v. Baca, 652 F.3d 1202, 1207 (9th

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Cir. 2011). A defendant may be held liable as a supervisor under Section 1983 if there exists

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“either (1) his or her personal involvement in the constitutional deprivation; or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional violation.”

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Starr, 652 F.3d at 1207. A supervisor’s own

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culpable action or inaction in the training, supervision, or control of his subordinates may

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establish supervisory liability. Starr, 652 F.3d at 1208.

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V. Analysis

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Here, Massa investigated plaintiff’s medical chrono and notified custody staff of its

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existence. Yet nothing happened as a result, and the chrono was not honored. From the

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complaint, it is not clear whether Massa was aware that his subordinates took no action after they

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learned of plaintiff’s chrono. In any event, plaintiff points out that “[n]otifying the custody staff
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is not the same as ordering that they comply with the medical orders.” (ECF No. 26 at 1.) In fact,

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when another lieutenant ordered plaintiff to be moved to a lower bunk after his fall, custody staff

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complied.

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Still, mere negligence is not actionable under § 1983, and having reviewed the allegations,

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the undersigned concludes that they are insufficient to causally link Massa to any constitutional

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violation. Thus the undersigned will recommend that Massa be dismissed from this action.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to
this action.
IT IS HEREBY RECOMMENDED that defendant Massa’s motion to dismiss (ECF No.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 13, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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