(PC) Stewart v. Fu et al

Filing 44

ORDER signed by District Judge John A. Mendez on 4/27/2021 GRANTING Without Leave to Amend Defendants' 37 Motion to Dismiss. DISMISSING defendants Parole Officer Ken Dixon and Associate Warden Melba S. Starr; GRANTING Defendants 9; Motion to Dismiss Plaintiff's first cause of action against Parole Officer Ken Dixon for battery and excessive force; and GRANTING Defendants' Motion to Dismiss Plaintiff's sixth cause of action for deliberate indifference to a serious medical need insofar as it is alleged against Assistant Warden Melba S. Starr. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER STEWART,

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2:19-cv-00286-JAM-CKD

Plaintiff,
v.
LAW FU, ASSOCIATE WARDEN MELBA S.
STARR, PAROLE OFFICER KEN DIXON, et
al.,

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No.

ORDER GRANTING DEFENDANTS
DIXON AND STARR’S MOTION
TO DISMISS

Defendants.
Christopher Stewart (“Plaintiff”) sued Associate Warden
Melba S. Starr and Parole Officer Ken Dixon (collectively,
“Defendants”), as well as a host of Sacramento County employees,
alleging excessive force, deliberate indifference to medical
needs, and deprivation of due process in violation of his Fourth,
Eighth, and Fourteenth Amendment rights when he was in the
Sacramento County Jail and, later, the California Department of
Corrections and Rehabilitation Deuel Vocational Institute
(“DVI”).

See Second Am. Compl. (“SAC”), ECF No. 32.

also alleges a handful of state law claims.

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Id.

Plaintiff

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Defendants move to dismiss: (1) Plaintiff’s first cause of

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action against Dixon for battery and excessive force; and

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(2) Plaintiff’s sixth cause of action against Starr for

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deliberate indifference to a serious medical need.

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Dismiss (“Mot.”), ECF No. 37.

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and Starr as defendants.

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claims against them fail to state a claim upon which relief can

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be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

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Id.

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See Mot. to

Doing so would dismiss both Dixon

Defendants argue that each of the

Plaintiff opposes the motion.

See Opp’n, ECF No. 41.

For the reasons set forth below, the Court GRANTS
Defendants’ Motion to Dismiss.1

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I.

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FACTUAL BACKGROUND

On November 4, 2017, Plaintiff was involved in two

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motorcycle accidents.

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injuries, including a broken arm, broken leg, broken knee, and

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broken hip.

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received medical treatment, which included the insertion of

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plates to hold his fractures in place.

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still undergoing treatment and expected future surgeries when he

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was arrested by Parole Officer Dixon on February 9, 2018.

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¶¶ 18, 20.

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Plaintiff that day, citing medical reasons.

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SAC ¶ 11.

SAC ¶¶ 8–10.

He suffered several serious

After the second accident, Plaintiff

SAC ¶ 18.

Plaintiff was

However, the Sacramento County Jail refused to accept
SAC ¶ 21.

Plaintiff was arrested again on February 23, 2018.
¶ 24.

SAC

SAC

This time the Sacramento County Jail accepted Plaintiff

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for March 23, 2021.
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and placed him in a medical ward.

SAC ¶¶ 24, 26.

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arrest, Plaintiff asked Dixon not to handcuff him behind his back

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because of his injuries.

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Plaintiff’s requests.

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to DVI in San Joaquin County.

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assigned to Dr. Fu for medical care.

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Plaintiff from April 2, 2018, until August 9, 2018.

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63, 71-72.

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inadequate.

SAC ¶¶ 22, 25.

Id.

During each

Dixon ignored

Eventually, Plaintiff was transferred
SAC ¶ 47.

There, Plaintiff was

SAC ¶ 47.

Dr. Fu treated
SAC ¶¶ 50–

Plaintiff alleges that much of Dr. Fu’s treatment was
Id.

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On June 18, 2018, Plaintiff appeared in front of the

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classification committee, which was headed by Associate Warden

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Starr.

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Privileges” and a transfer to a medical facility.

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committee report noted that Plaintiff had serious medical needs

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that might mandate specialized transfer considerations.

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¶ 65.

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considerations were not dispositive and, ultimately, decided not

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to transfer Plaintiff because CDCR staff had not completed

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processing.

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interviewed Plaintiff nor conducted “casework review.”

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Plaintiff appealed the decision on June 29, 2018.

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SAC ¶ 64.

The committee denied Plaintiff “Extended Stay
Id.

The

SAC

The report also noted that the specialized transfer

Id.

Specifically, CDCR staff had neither
Id.

SAC ¶ 67.

On July 16, 2018, Plaintiff filed a disability accommodation

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request.

SAC ¶ 68.

Starr responded a few days later, indicating

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that Plaintiff had not raised any disability-related access

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issues that might cause injury or serious harm.

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also appealed this decision.

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Plaintiff’s appeal and submitted his complaint to the Health Care

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Grievance Coordinator.

SAC ¶ 69.

SAC ¶ 70.
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Id.

Plaintiff

CDCR dismissed

Plaintiff never heard from the

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coordinator.

Id.

Plaintiff alleges that his medical conditions have worsened

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as a direct result of his manner of incarceration and the

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deliberate indifference to his medical needs.

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instance, the plate in Plaintiff’s hip disconnected and the bone

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in his wrist died.

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providers have informed him that the delay in treatment caused by

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his time in the Sacramento County Jail and DVI caused

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irreversible and permanent injury.

SAC ¶¶ 74–75.

SAC ¶¶ 73–76.

For

Plaintiff’s current medical

SAC ¶¶ 78, 80.

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II.

OPINION

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A.

Legal Standard

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Federal Rule of Civil Procedure 8(a)(2) requires “a short

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and plain statement of the claim showing that the pleader is

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entitled to relief.”

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fails to “state a claim upon which relief can be granted.”

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R. Civ. Proc. 12(b)(6).

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dismiss, a plaintiff must “plead enough facts to state a claim

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to relief that is plausible on its face.”

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v. Twombly, 550 U.S. 544, 570 (2007).

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B.

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A suit must be dismissed if the plaintiff
Fed.

To defeat a Rule 12(b)(6) motion to

Bell Atlantic Corp.

Analysis
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Parole Officer Dixon

Plaintiff’s first cause of action alleges a claim of

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battery and a claim of excessive force pursuant to 42 U.S.C.

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§ 1983.

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because a plaintiff “must prove unreasonable force as an element

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of [battery].”

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1272 (1998).

See SAC at 12–15.

The two claims are interrelated

Edson v. City of Anaheim, 63 Cal.App.4th 1269,
The reasonableness of the force is generally
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assessed by carefully weighing “the nature and quality of the

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intrusion on the individual’s Fourth Amendment interests against

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the countervailing governmental interests at stake.”

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Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and

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citation omitted).

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“careful attention to the facts and circumstances of each

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particular case.”

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is reasonable, considering all the relevant circumstances, there

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is no valid excessive force claim.

Graham v.

It is an objective inquiry that pays

Id.

If an officer carries out a seizure that

Cnty. of L.A., Cal. v.

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Mendez, 137 S. Ct. 1539, 1547 (2017).

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battery claim.

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definition, a prima facie battery is not established unless and

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until plaintiff proves unreasonable force was used.”).

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Nor is there a valid

See Edson, 63 Cal.App.4th at 1273 (“[B]y

Thus, the Court’s inquiry begins and ends with its

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reasonableness assessment.

Plaintiff does not contest the

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lawfulness of either the February 9, 2018, arrest or the

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February 23, 2018, arrest.

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does not dispute that Dixon had a right to touch him in

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effectuating the arrests and that handcuffs are used in the

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ordinary course of lawful arrests.

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handcuffing Plaintiff behind his back was unreasonable.

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¶¶ 22, 25; Opp’n at 3–4.

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any caselaw in support of the argument that doing so might

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constitute an excessive use of force.

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that the action was unreasonable because he asked Dixon not to

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handcuff him from behind because of his injuries.

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insufficient.

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he told Dixon that he was, in fact, in pain.

Opp’n at 3.

Plaintiff similarly

Id.

At issue is whether
See SAC

However, Plaintiff fails to cite to

Plaintiff merely argues

This is

Plaintiff does not allege that, once handcuffed,

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And Plaintiff’s

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allegation that being handcuffed by Dixon from behind caused

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“damage to the surgical repairs” is vague and unsupported by any

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specific facts or competent evidence.

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only details injuries caused by the Sacramento County Jail

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deputies when they handcuffed him and transported him to and

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from court.

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apart from any caused by Dixon.

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See SAC ¶ 40.

SAC ¶¶ 22, 25.

Plaintiff

Those injuries are separate and

Dixon’s conduct need not have been the “least intrusive
means,” but must only have been “within that range of

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conduct . . . identif[ied] as reasonable.”

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292 F.3d 1177, 1188-89 (9th Cir. 2002).

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behind their back is routine and possibly even required.

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action was, therefore, within the range of reasonable conduct.

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The facts alleged in the SAC do not support Plaintiff’s claim

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that Dixon used a degree of force or method of handcuffing

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beyond what was required.

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of action for battery and excessive force against Parole Officer

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Dixon is DISMISSED.

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2.

Billington v. Smith,

Handcuffing a person
The

Accordingly, Plaintiff’s first cause

Associate Warden Starr

Plaintiff’s sixth cause of action alleges deliberate

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indifference to his medical needs.

See SAC at 31–33.

An

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incarcerated person may state a § 1983 violation of the Eighth

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Amendment by correctional employees if he alleges “acts or

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omissions sufficiently harmful to evidence deliberate

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indifference to [his] serious medical needs.”

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Gamble, 429 U.S. 97, 106 (1976).

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indifference involves examining two elements: “the seriousness

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of the prisoner’s medical need and the nature of the defendant’s

Estelle v.

A determination of deliberate

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response to that need.”

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(9th Cir. 1992), overruled on other grounds by WMX Techs., Inc.

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v. Miller, 104 F.3d 1133 (9th Cir. 1997).

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McGuckin v. Smith, 974 F.2d 1050, 1059

For a defendant’s response to a serious medical need to

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rise to the level of deliberate indifference, there must be a

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purposeful act or failure to act on the part of the defendant.

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Id. at 1061.

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prison doctors in their response to the prisoner’s needs or by

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prison guards intentionally denying or delaying access to

For instance, “indifference is manifested by

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medical care or intentionally interfering with the treatment

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prescribed.”

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although it may produce added anguish, is not on that basis

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alone to be characterized as wanton infliction of unnecessary

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pain” sufficient to demonstrate deliberate indifference, “nor

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does an inadvertent failure to provide adequate medical care” by

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itself create a cause of action under § 1983.

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“Mere negligence in diagnosing or treating a medical condition,

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without more, does not violate a prisoner’s Eighth Amendment

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rights.”

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Cir. 1988).

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Gamble, 429 U.S. at 104–05.

“An accident,

Id. at 105.

Hutchinson v. United States, 838 F.2d 390, 394 (9th

As an initial matter, the seriousness of Plaintiff’s injury

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is not in dispute.

Upon his transfer to DVI, Plaintiff was

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referred to Dr. Fu for medical care and it was quickly

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determined that he needed surgery to correct a loose plate in

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his wrist.

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Associate Warden Starr’s subsequent actions amounted to

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deliberate indifference.

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against Starr are that Starr, as the head of the classification

SAC ¶¶ 47, 51–52.

What is in dispute is whether

Plaintiff’s specific allegations

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committee, failed to properly vet Plaintiff’s case and

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ultimately denied the classification change.

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Plaintiff requested the transfer to another facility because he

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felt that DVI could not meet his medical needs.

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67, 69.

SAC ¶ 64.

See SAC ¶¶ 61,

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These facts do not support the allegation that Starr

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intentionally denied or delayed Plaintiff’s access to medical

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care or intentionally interfered with the treatment prescribed

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by the medical staff at DVI.

See Gamble, 429 U.S. at 104–05.

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Instead, Starr denied Plaintiff’s request to be transferred to

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another facility.

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deliberate indifference to an incarcerated person’s serious

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medical needs.

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prison facility of his choice.

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670, 671 (9th Cir. 2007) (citing Olim v. Wakinekona, 461 U.S.

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238, 245 (1983)).

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itself, a constitutional violation.

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639, 640 (9th Cir. 1998) (“There is no legitimate claim of

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entitlement to a grievance procedure.”).

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describes the medical treatment Plaintiff received while at the

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facility.

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facts that suggest Starr intentionally interfered with or

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prevented that treatment.

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SAC ¶¶ 64, 68.

This does not constitute

An incarcerated person does have a right to the
Williams v. Wood, 223 F.App’x

And a denial of a grievance is not, in and of
Mann v. Adams, 855 F.2d

Moreover, the SAC

See SAC ¶¶ 50, 52–53, 55, 57, 59–60.

It presents no

Plaintiff’s SAC does not include sufficient factual matter

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to state a claim of deliberate indifference to medical needs

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against Starr that is plausible on its face.

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Iqbal, 556 U.S. 662, 678 (2009).

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cause of action against Assistant Warden Starr is DISMISSED.

See Ashcroft v.

Accordingly, Plaintiff’s sixth

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C.

Leave to Amend

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Under Fed. R. Civ. Proc. 15(a), leave to amend “shall be

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freely given when justice so requires.”

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“repeatedly stressed” that the Court must adhere to “the

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underlying purpose of Rule 15 . . . to facilitate decision on

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the merits, rather than on the pleadings or technicalities.”

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Accordingly, leave to amend should be granted, “unless [the

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Court] determines that a pleading could not possibly be cured by

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the allegation of other facts.”

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The Ninth Circuit has

F.3d 494, 497 (9th Cir. 1995)).

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Id. (citing Doe v. U.S., 58

Plaintiff has requested leave to amend.

Opp’n at 4.

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However, the Court finds that amendment would be futile.

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Plaintiff has had three opportunities to file sufficiently pled

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claims against these two Defendants.

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First Am. Compl., ECF No. 11; SAC, ECF No.32.

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Plaintiff, in his opposition, had the opportunity to set forth

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additional facts in support of the specific causes of action

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challenged by Defendants here, but failed to add anything to

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suggest they can be cured by amendment.

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See Compl., ECF No. 1;
Moreover,

Accordingly, the Court DENIES Plaintiff’s request for leave
to amend the SAC.

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III.

ORDER

For the reasons set forth above, the Court GRANTS WITHOUT
LEAVE TO AMEND Defendants’ Motion to Dismiss.
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The Court:

DISMISSES as defendants Parole Officer Ken Dixon and

Associate Warden Melba S. Starr;
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2.

GRANTS Defendants’ Motion to Dismiss Plaintiff’s first

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cause of action against Parole Officer Ken Dixon for battery and

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excessive force; and

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3.

GRANTS Defendants’ Motion to Dismiss Plaintiff’s sixth

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cause of action for deliberate indifference to a serious medical

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need insofar as it is alleged against Assistant Warden Melba S.

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Starr.

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IT IS SO ORDERED.
Dated: April 27, 2021

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