Torbert v. Gore et al

Filing 109

ORDER: Adopting 100 Report and Recommendation; (2) Granting in Part Defendants' 71 Motion for Summary Judgment; and Granting Plaintiff's 106 Motion to Amend Complaint. Signed by Judge Roger T. Benitez on 10/5/2016.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAVON LAMAR TORBERT,

Case No.: 3:14-cv-02911-BEN (NLS)
Plaintiff,

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v.

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WILLIAM D. GORE, Sheriff of San
Diego Sheriff Department; DEPUTY
DAILLY, Sheriff of San Diego Sheriff
Department; DEPUTY McMAHON,
Sheriff of San Diego Sheriff Department;
DEPUTY Y.G. GEBREBIORGIS, Sheriff
of San Diego Sheriff Department;
SERGEANT ESTRADA, Sheriff of San
Diego Sheriff Department; COUNTY OF
SAN DIEGO; and DOES 1-50,

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ORDER:

Defendants.

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(1) ADOPTING REPORT AND
RECOMMENDATION [ECF No.
100];
(2) GRANTING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [ECF No.
71]; and
(3) GRANTING PLAINTIFF’S
MOTION TO AMEND COMPLAINT
[ECF No. 106]

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Plaintiff Javon Lamar Torbert, a state prisoner proceeding pro se and in forma

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pauperis, brought this action under 42 U.S.C. § 1983, asserting claims under state law

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and for violations of the Eighth Amendment arising from two alleged incidents. The

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Court addresses two motions in this Order: (1) Defendant’s motion for summary

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judgment on all claims, and Magistrate Judge Stormes’s Report and Recommendation

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thereon; and (2) Plaintiff’s motion to amend his complaint. Each is addressed in turn.
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3:14-cv-02911-BEN (NLS)

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I.

Report and Recommendation on Defendants’ Motion for Summary Judgment

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After an extended discovery period, Defendants filed a motion for summary

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judgment, seeking judgment in their favor on all claims. (Mot. Summ. J., ECF No. 71.)

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On August 15, 2016, the Honorable Nita L. Stormes, United States Magistrate Judge,

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issued a thorough and thoughtful Report and Recommendation in which she

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recommended granting in part and denying in part Defendants’ motion for summary

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judgment. (R&R at 2, ECF No. 100.) Plaintiff filed objections. (Obj., ECF No. 104.)

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Where a timely objection to a report and recommendation has been filed, the district

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court reviews de novo those portions of the report or specific proposed findings or

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recommendations to which an objection was filed. 28 U.S.C. § 636(b)(1).
Plaintiff objects to the Report and Recommendation’s conclusions regarding his

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deliberate indifference claim concerning Defendants’ failure to return his cane (claim

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two) and his deliberate indifference claim related to having to wait to see a doctor and not

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being referred to a neurologist (claim three). To prevail on an Eighth Amendment claim

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based on prison medical treatment, an inmate must show “deliberate indifference to

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serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A plaintiff must

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establish a “serious medical need” by demonstrating that “failure to treat a prisoner’s

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condition could result in further significant injury or the ‘unnecessary and wanton

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infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citation

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omitted).

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With respect to Plaintiff’s deliberate indifference claim related to the cane, the

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Report and Recommendation concluded that Plaintiff had not made an objective showing

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that he had a serious medical need requiring the cane. (R&R at 15.) Plaintiff’s objection

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argues that Defendants acted in bad faith by taking away his cane without a doctor’s

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consent.

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The Court finds that there is no genuine dispute whether Plaintiff suffered from a

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serious medical need for a cane. He has failed to show he had such a need because he

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was able to walk without the cane. In fact, there is video footage documenting him
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3:14-cv-02911-BEN (NLS)

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pacing for at least six minutes without using his cane. Contemporaneous medical records

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also support this finding. (Obj. Ex. D (“I/P is seen doing exercises throughout the day

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and not using cane”); Ex. F (“IP observed by staff ambulating w/o cane”) Ex. I (noting

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that Plaintiff’s “gait” was “steady”); Ex. K (“[A]mbulation stable without cane in clinic

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today. Do not think this pt warrants use of a cane at this point.”)) Moreover, the cane

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was taken away as a security measure because Plaintiff was upset and agitated, after he

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had already been observed walking easily without it. Therefore, the Court overrules

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Plaintiff’s objection on claim two.
As to Plaintiff’s deliberate indifference claim for having to wait 13 hours before he

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was seen for an arm injury and not being referred to a neurologist, the Report and

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Recommendation again found that Plaintiff had not established a serious medical need.

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(R&R at 16-17 (“No objective medical evidence shows that either an immediate visit to a

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doctor was necessary, or that referral to a neurologist was warranted.”). Plaintiff objects

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that Defendants ignored his pain and intentionally misled medical staff about the source

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of his pain. He contends that “Dr. Dillman wrote [in] her notes . . . that Plaintiff could

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get an appointment with a nerve specialist if symptoms persisted.” (Obj. at 5.)

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Again, the Court agrees with the Report and Recommendation. Plaintiff was

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injured in the evening and received pain medicine shortly after the injury. He was seen

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by medical staff the next morning and had numerous medical appointments to follow up

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on his injury. None of the medical exams revealed a lasting injury, and no doctor

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believed a neurology referral was necessary. Thus, there is no genuine dispute whether

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Plaintiff suffered a serious medical need. The Court overrules Plaintiff’s objection.

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In sum, this Court has carefully reviewed the Report and Recommendation,

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Plaintiff’s Objections, and the remainder of the record in this matter and ADOPTS the

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Report and Recommendation in full.

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II.

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Plaintiff’s Motion to Amend Complaint
After the Magistrate Judge issued the Report and Recommendation, Plaintiff filed

a motion to amend his complaint. (Mot. to Amend Compl., ECF No. 106.) Plaintiff
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3:14-cv-02911-BEN (NLS)

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seeks to reduce his request for compensatory damages from $800,000 to $75,000, to

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reduce his request for punitive damages from $1.5 million to $125,000, and to change his

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initial request for a jury trial to a request for a bench trial. (Id. at 1.)

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Leave to amend under Federal Rule of Civil Procedure 15(a)(2) should be “freely

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give[n] . . . when justice so requires.” Courts consider “undue delay, bad faith, dilatory

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motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to

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the opposing party, and futility of the proposed amendment” in deciding whether justice

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requires granting leave to amend under Rule 15. Moore v. Kayport Package Express,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 370 U.S. 178, 182

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(1962)).
In light of the limited changes to Plaintiff’s complaint and the lack of prejudice to

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Defendants, Plaintiff’s motion to amend his complaint is GRANTED. Plaintiff need not

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file an Amended Complaint.

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III.

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Conclusion
For the reasons discussed above, the Report and Recommendation is ADOPTED

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in its entirety. Defendants’ Motion for Summary Judgment is GRANTED IN PART.

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With this Order, the Court grants summary judgment on all claims except for one. The

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only remaining claim for relief is claim one for excessive force as alleged against

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Defendant Dailly related to the October 2, 2014 incident.

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Plaintiff’s motion to amend his complaint is GRANTED.

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IT IS SO ORDERED.

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Dated: October 5, 2016

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3:14-cv-02911-BEN (NLS)