Reyes v. Brown et al

Filing 57

REPORT AND RECOMMENDATION For Order Granting Defendants Motion To Dismiss Plaintiff's First Amended Complaint For Failure to State A Claim For Which Relief May Be Granted re 39 MOTION to Dismiss for Failure to State a Claim filed by Raymond Madden, Rogelio Ortega, 53 MOTION to Dismiss for Failure to State a Claim filed by Beltran, Raymond Madden, Rogelio Ortega. It is ordered that any written objections to this Report must be filed with the Court and serv ed on all parties no later than 5/2/2017. Any reply to the objections shall be filed with this Court and served on all parties no later than 5/23/2017. Signed by Magistrate Judge Barbara Lynn Major on 4/4/2017.(All non-registered users served via U.S. Mail Service)(dxj)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 16cv84-JLS (BLM)

PEDRO REYES,

REPORT AND RECOMMENDATION FOR
ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS PLAINTIFF'S
FIRST AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM FOR
WHICH RELIEF MAY BE GRANTED

Plaintiff,

12
13

v.

14

EDMUND G. BROWN, JR., DR. ROGELIO
ORTEGA, RAY MADDEN, JOHN DOE
CORRECTIONAL OFFICERS 1 THROUGH 5,
JOHN DOE CORRECTIONAL SERGEANT, AND
NURSE BELTRAN,

15
16
17
18

[ECF Nos. 39, 53]

Defendants.

19
20

This Report and Recommendation is submitted to United States District Judge Janis L.

21

Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3(f) of the

22

United States District Court for the Southern District of California. For the following reasons,

23

the Court RECOMMENDS that Defendants’ motions to dismiss be GRANTED.

24

PROCEDURAL BACKGROUND

25

On January 5, 2016, Plaintiff Pedro Reyes, a state prisoner proceeding pro se and in

26

forma pauperis, filed a complaint under the Civil Rights Act, 42 U.S.C. § 1983, against

27

Defendants Brown, Ortega, and Madden. ECF No. 1 (“Comp.”). Plaintiff alleged claims under

28

the Eighth and Fourteenth Amendments. Id. at 3-18. On April 25, 2016, Defendants filed a
1

16cv84-JLS (BLM)

1

Motion to Dismiss the Complaint for Failure to State a Claim for which Relief May be Granted.

2

ECF No. 19-1. After granting two requests from Plaintiff to continue his deadline for opposing

3

Defendants’ motion [see ECF Nos. 22-26], Plaintiff timely filed his opposition [ECF No. 28].

4

On July 25, 2016, Plaintiff filed a “REQUEST FOR LEAVE TO FILE A FIRST AMENDED

5

COMPLAINT” and “PLAINTIFF’S SECOND MOTION FOR THE APPOINTMENT OF COUNSEL BASED

6

ON PRIOR ARGUMENT AND A RECENT THREAT TO AN INMATE ASSISTANT” that were accepted

7

by the Court on discrepancy on August 2, 2016.

8

Defendants filed a response indicating that they did not oppose the motion to file a first amended

9

complaint [see ECF No. 35] and the Court took the matter under submission. On August 26,

10

2016, District Judge Sammartino granted Plaintiff’s motion to file a first amended complaint and

11

denied as moot Defendants’ motion to dismiss. ECF No. 36.

ECF Nos. 29-32.

On August 15, 2016,

12

On July 25, 2016, Plaintiff filed the operative First Amended Complaint under the Civil

13

Rights Act, 42 U.S.C. § 1983, alleging violations of the Eighth Amendment against Defendants

14

Madden, Ortega, Beltran, and John Does 1 through 6. ECF No. 37 (“FAC”). On October 5, 2016,

15

Defendants Madden and Ortega filed a Motion to Dismiss for Failure to State a Claim for Which

16

Relief May be Granted. ECF No. 39-1 (“MTD 1”).

17

On October 25, 2016, Plaintiff filed a letter requesting the appointment of counsel, or in

18

the alternative, more time to file his opposition. ECF No. 44; see also ECF No. 45. On November

19

4, 2016, the Court issued an order denying Plaintiff’s motion for the appointment of counsel and

20

granted Plaintiff’s motion to extend the deadline to file an opposition to Defendants’ motion to

21

dismiss. ECF No. 45. On November 15, 2016, Plaintiff filed a motion to appoint counsel and

22

requested the case be stayed until the Court rules on the motion to appoint counsel. ECF No.

23

48. On November 30, 2016, the Court denied Plaintiff’s motion to appoint counsel and denied

24

as moot Plaintiff’s motion to stay. ECF No. 49.

25

On December 12, 2016, Plaintiff filed a second motion for an extension of time to file an

26

opposition to Defendants’ motion to dismiss. ECF No. 51. The Court granted Plaintiff’s motion

27

and ordered Plaintiff to file his opposition on or before January 12, 2017, and Defendants to file

28

their reply on or before February 6, 2017. ECF No. 52. On January 3, 2017, Plaintiff timely filed
2

16cv84-JLS (BLM)

1

his opposition. ECF No. 55 (“Oppo. 1”). Defendants did not file a reply. See Docket.

2

On December 21, 2016, Defendant Beltran filed a motion to dismiss Plaintiff’s First

3

Amended Complaint for failure to state a claim for which relief may be granted. ECF No. 53-1

4

(“MTD 2”).

5

Defendants did not file a reply. See Docket.

6

On January 24, 2017, Plaintiff filed his opposition [ECF No 56 (“Oppo. 2”)].

COMPLAINT ALLEGATIONS

7

Because this case comes before the Court on a motion to dismiss, the Court must accept

8

as true all material allegations in the complaint, and must construe the complaint and all

9

reasonable inferences drawn therefrom in the light most favorable to Plaintiff. See Thompson

10

v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

11

According to the First Amended Complaint, Plaintiff (1) was forced to endure unsafe

12

prison conditions, (2) was denied adequate medical care, and (3) suffered cruel and unusual

13

punishment. FAC. Plaintiff alleges that in order to move around the D-Yard prison facility where

14

he is housed to get breakfast and dinner or to exercise (jog, walk, run etc.), he is required to

15

walk on a specific track. FAC at 3. The track, however, is in a severely dangerous condition

16

and is comprised of sharp, jagged rocks that protrude from various angles, wide cracks, and

17

random indentations. Id. Due to the state of the path, it is difficult for people using the path

18

to maintain their balance and it is likely that anyone who falls on the path will “turn an ankle

19

in.” Id. Plaintiff alleges that the poor condition of the track caused him to trip and fall while

20

jogging around the path on March 11, 2015. Id. The fall caused Plaintiff to strike his head and

21

neck on the asphalt, lose consciousness for approximately two to three minutes, injure his

22

shoulder and neck, and suffer several scrapes and bruises. Id. Plaintiff alleges that Defendant

23

Madden, acting in his individual and official capacity as Warden, was aware of the unsafe

24

condition of the path, failed to repair the path, and implemented a policy permitting the track

25

to be fixed only with requested funds from Sacramento when he knew those requests were

26

being ignored. Id. at 3, 35. Plaintiff further alleges that Defendant Madden could have used

27

inmate labor or funds intended to be used for less serious issues to fix the track. Id. at 3.

28

Plaintiff alleges that the handling of the dangerous path violated his Eighth Amendment rights
3

16cv84-JLS (BLM)

1

and that he was subjected to “dangerous prison conditions.” Id.

2

With respect to his cruel and unusual punishment claims, Plaintiff alleges that when he

3

initially fell and lost consciousness on March 11, 2015, none of the correction officers supervising

4

the yard offered Plaintiff assistance.1 Id. at 4. Plaintiff also alleges that the correctional Sergeant

5

supervising the correction officers failed to ensure Plaintiff’s safety.2 Id. Instead, other inmates

6

carried him to the medical clinic. Id. Plaintiff alleges that the officers’ failure to assist Plaintiff

7

constitutes cruel and unusual punishment. Id.

8

Plaintiff also alleges that he failed to receive adequate medical care from March 11, 2015

9

to June 22, 2015. See Id. at 5-7. After the inmates carried Plaintiff to the medical clinic, Nurses

10

Pacheco and Johnson cleaned Plaintiff’s superficial wounds. Id. at 5. Plaintiff told them that he

11

was in severe pain. Id. Nurses Pacheco and Johnson sent Plaintiff to see Defendant Nurse

12

Beltran.3 Id. Nurse Beltran prescribed Plaintiff 600mg of Ibuprofen for pain, and told Plaintiff

13

to put in a medical request if he wanted to see the doctor. Id.

14

Plaintiff’s pain continued to increase and he was seen by Defendant Doctor Ortega “[a]

15

few days after Plaintiff[’]s fall.” Id. at 6. Defendant Ortega allegedly “continuously down played

16

Plaintiff’s pain” and “ignored Plaintiff when [he] said that 600mg of []Ibuprofen did nothing for

17

the pain.” Id. Plaintiff alleges that Defendant Ortega accused Plaintiff of faking his injuries. Id.

18

Defendant Ortega told Plaintiff he would have x-rays taken of Plaintiff’s shoulder and spine. Id.

19

However, Plaintiff alleges that he “does not know if these x-rays took place.” Id. Plaintiff alleges

20
21
22
23
24
25
26
27
28

1

The Correction Officers are named as John Does 1-5 in Plaintiff’s First Amended Complaint.
These Doe Defendants have not been served in this action. See ECF No. 41 (Summons returned
unexecuted as to John Does 1 through 5). Because the Doe correctional officers have not been
served, this Report and Recommendation will not address Plaintiff’s claims against them.
2

The Correctional Sergeant is named as John Doe 6 in Plaintiff’s First Amended Complaint. This
Doe Defendant also has not been served in this action. See ECF No. 42 (Summons returned
unexecuted as to John Doe 6). Accordingly, this Report and Recommendation will not address
Plaintiff’s claim against the Doe correctional sergeant.
3

The claims against Defendant Beltran are addressed in Defendants’ MTD 2. See MTD 2.
Defendants’ MTD 1 does not address Defendant Beltran who waived service on November 17,
2016, after the MTD 1 was filed. See ECF No. 46.
4

16cv84-JLS (BLM)

1

his medical records indicate that three x-rays were taken of his shoulder and spine on April 6,

2

2015 and April 20, 2015, but that the x-ray technicians did not replace the x-ray film after taking

3

the first x-rays. Id. at 6, 18, 20. Plaintiff alleges that had Defendant Ortega actually taken x-

4

rays, he would have seen Plaintiff’s injury. Id. at 6. After the x-rays and Plaintiff’s continued

5

complaints of pain, Defendant Ortega sent Plaintiff to get a cervical spine MRI on May 29, 2015.

6

Id. at 7, 22. The MRI indicated that Plaintiff needed emergency surgery to place a steel rod in

7

his neck.4 Id. at 7.

8

surgery with Dr. Berman for a traumatic C4-C5 herniated disk with myelopathy. Id. at 58.

9

Plaintiff alleges that Defendant Ortega was deliberately indifferent when he deprived Plaintiff of

10

adequate medical care for over three months between the date of Plaintiff’s fall and the date of

11

the surgery. Id. at 2, 6.

On June 22, 2015, Plaintiff underwent a non-complicated C4-C5 ACDF

LEGAL STANDARD

12
13

Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and

14

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

15

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

16

demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft

17

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

18

(2007)).

19

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the plaintiff’s claims.

20

See Fed. R. Civ. P. 12(b)(6). The issue is not whether the plaintiff ultimately will prevail, but

21

whether he has properly stated a claim upon which relief could be granted. Jackson v. Carey,

22

353 F.3d 750, 755 (9th Cir. 2003). In order to survive a motion to dismiss, the plaintiff must

23

set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

24

on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). If the facts alleged in

25

the complaint are “merely consistent with” the defendant’s liability, the plaintiff has not satisfied

26
27
28

4

Plaintiff’s MRI revealed the presence of cervical cord compression and C4-5 disk extrusion with
central canal stenosis, cord compression, and associated myelomalacia. FAC at 22.
5

16cv84-JLS (BLM)

1

the plausibility standard. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather,

2

“[a] claim has facial plausibility when the [plaintiff] plead[s] factual content that allows the court

3

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

4

556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

5

When a plaintiff appears pro se, the court must be careful to construe the pleadings

6

liberally and to afford the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S.

7

89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). This rule of liberal

8

construction is “particularly important” in civil rights cases. Hendon v. Ramsey, 528 F. Supp. 2d

9

1058, 1063 (S.D. Cal. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992));

10

see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (stating that because “Iqbal

11

incorporated the Twombly pleading standard and Twombly did not alter the courts’ treatment

12

of pro se filings; accordingly we continue to construe pro se filings liberally . . . .” This is

13

particularly important where the petitioner is a pro se prisoner litigant in a civil matter). When

14

giving liberal construction to a pro se civil rights complaint, however, the court is not permitted

15

to “supply essential elements of the claim[] that were not initially pled.” Easter v. CDC, 694 F.

16

Supp. 2d 1177, 1183 (S.D. Cal. 2010) (quoting Ivey v. Bd. of Regents of the Univ. of Alaska,

17

673 F.2d 266, 268 (9th Cir. 1982)). “Vague and conclusory allegations of official participation

18

in civil rights violations are not sufficient to withstand a motion to dismiss.” Id. (quoting Ivey,

19

673 F.2d at 268).

20

The court should allow a pro se plaintiff leave to amend his or her complaint, “unless the

21

pleading could not possibly be cured by the allegation of other facts.” Ramirez v. Galaza, 334

22

F.3d 850, 861 (9th Cir. 2003) (internal quotation marks and citations omitted). Moreover,

23

“before dismissing a pro se complaint the district court must provide the litigant with notice of

24

the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to

25

amend effectively.” Ferdik, 963 F.2d at 1261.

26

To state a claim under § 1983, a plaintiff must allege facts sufficient to show that (1) a

27

person acting under color of state law committed the conduct at issue, and (2) the conduct

28

deprived the plaintiff of some “rights, privileges, or immunities” protected by the Constitution of
6

16cv84-JLS (BLM)

1

the laws of the United States. 42 U.S.C. § 1983. To prevail on a § 1983 claim, “a plaintiff must

2

demonstrate that he suffered a specific injury as a result of specific conduct of a defendant and

3

show an affirmative link between the injury and the conduct of the defendant.” Harris v. Schriro,

4

652 F. Supp. 2d 1024, 1034 (D. Ariz. 2009) (citation omitted). A particular defendant is liable

5

under § 1983 only when the plaintiff proves he participated in the alleged violation. Id.

6

I.

MOTION TO DISMISS – DEFENDANTS MADDEN AND ORTEGA

7

Plaintiff alleges that he was forced to endure unsafe prison conditions, denied adequate

8

medical care, and suffered cruel and unusual punishment in violation of his Eighth Amendment

9

rights. FAC. Plaintiff seeks (1) an injunction preventing Defendant Ortega from acting as his

10

care provider, (2) damages to be determined by the court or a jury, (3) punitive damages in a

11

sum to be determined by the court or a jury, and (4) special damages for any lost future wages

12

and pre-judgment interest on all monetary awards. Id. at 9.

13

Defendants move to dismiss Plaintiff’s claims against Defendants Madden and Ortega on

14

the ground that Plaintiff’s First Amended Complaint fails to state a claim for relief under the

15

Eighth Amendment. MTD 1.

16

A. Eighth Amendment Deliberate Indifference to Safety Claim Against

17

Defendant Madden

18

Plaintiff alleges that Defendant Madden violated his Eighth Amendment right to be free

19

from dangerous prison conditions by knowingly failing to fix the dangerous condition of the track

20

which caused Plaintiff to trip and fall while running. FAC at 3. In response, Defendants state

21

that “Plaintiff’s conclusory allegations fail to state an Eighth Amendment deliberate-indifference-

22

to-safety claim against Warden Madden.” MTD 1 at 12.

23

A prisoner may state a section 1983 claim under the Eighth Amendment against prison

24

officials where the officials acted with “deliberate indifference” to the threat of serious harm.

25

Leach v. Drew, 385 F. App’x. 699-701 (9th Cir. 2010) (citing Berg v. Kincheloe, 794 F.2d 457,

26

459, 460-61 (9th Cir. 1986); Robins v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001)). To assert an

27

Eighth Amendment claim based on conditions of confinement, a prisoner must satisfy two

28

requirements: one objective and one subjective. See Farmer v. Brennan, 511 U.S. 825, 834
7

16cv84-JLS (BLM)

1

(1994). Under the objective requirement, “the prison official's acts or omissions must deprive

2

an inmate of the minimal civilized measure of life's necessities.” Id.; see also Matthews v.

3

Holland, 2016 WL 3167568, at *2 (E.D. Cal. June 6, 2016). Under the subjective requirement,

4

the prisoner must allege facts which demonstrate that “the official knows of and disregards an

5

excessive risk to inmate health or safety; the official must both be aware of the facts from which

6

the inference could be drawn that a substantial risk of serious harm exists, and he must also

7

draw the inference.” Id. at 837. To prove knowledge of the risk, the prisoner may rely on

8

circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish

9

knowledge. Id. at 842.

10

1. Objective Prong

11

Plaintiff alleges that the “poor condition of the track” poses a danger of injury whether

12

“running or walking.” FAC at 3. Plaintiff explains that “[t]he state of the track is so severe that

13

walking on it in the state provided shoes hurt your feet, [t]here are sharp jagged rocks that

14

p[ro]trude [making] it is easy for one to catch their foot on [it], and there are many cracks that

15

are wide enough to turn an ankle in.” Id. Plaintiff alleges that it was the dangerous condition

16

of the track that caused him to trip and fall, which severely injured his neck. Id.

17

Defendants contend that federal courts generally reject constitutional claims brought by

18

inmates injured as a result of a “slip-and-fall” caused by a hazardous condition and that Plaintiff’s

19

“trip-and-fall” scenario should be treated identically. MTD 1 at 13-14. Additionally, Defendants

20

assert that the “dangerous condition” of the track does not pose a substantial risk of harm and

21

that Defendant Madden’s conduct “would be nothing more than negligence, at best, and is

22

insufficient to elevate Plaintiff’s claim to an Eighth Amendment violation.” Id. at 14.

23

Plaintiff opposes Defendants’ contention and argues that his case is distinguishable from

24

“slip-and-fall” cases because those cases concern qualified immunity in the summary judgment

25

context and involve minor safety hazards whereas this case involves an on-going hazardous

26

condition that prisoners must face and deal with multiple times each day. Oppo. 1 at 10. Plaintiff

27

further argues that he has pled sufficient facts to demonstrate a “danger plus” situation where

28

there was a threat to his safety that was exacerbated by Defendant Madden’s policy requiring
8

16cv84-JLS (BLM)

1

prisoners to use the track despite his failure to repair the track. Id. at 11-12.

2

“Generally, courts have conclude[d] that plaintiffs have failed to state claims when they

3

have fallen in prison.” Ramage v. United States, 2014 WL 4702288, at *5 (D. Ariz. Sept. 22,

4

2014). In reaching this decision, a number of courts have concluded, at both the motion to

5

dismiss and summary judgment stages, that poorly maintained surfaces or leaky roofs do not

6

pose a substantial risk of serious harm supporting a constitutional violation and are merely

7

negligence claims. See Hall v. Frauenheim, 2016 WL 2898712, at *1-*5 and fn. 1 (E.D. Cal.

8

May 18, 2016) (dismissing plaintiff’s claim with leave to amend where plaintiff alleged that

9

defendant knew about the leaky roof for years and the wet floor from the roof caused plaintiff

10

to fall and recognizing that “Warden acknowledged that leaky roofs are an issue, but stated that

11

everything that could be done by the institution had been done. The matter was forwarded to

12

Sacramento, and funding was an issue.”); see also Seymore v. Dep't of Corr Servs., 2014 WL

13

641428, *4 (S.D.N.Y. Feb. 18, 2014) (considering defendants’ motion to dismiss and finding that

14

the plaintiff (a pre-trial detainee) who alleged exposure to unsafe living conditions where the

15

bathroom had improper tile flooring with potholes, cracks and leaks that cause him to slip and

16

fall, failed to meet the standard for an Eighth Amendment violation as plaintiff’s allegations were

17

ordinary torts that did not rise to the level of constitutional violation and failed to satisfy the

18

objective prong of the deliberate indifference inquiry); Shannon v. Vannoy, 2016 WL 1559583,

19

*1 (M.D. La. Apr. 18, 2016) (granting defendants’ motion to dismiss where plaintiff claimed that

20

defendants were deliberately indifferent to a known safety risk where they knew of but failed to

21

repair a hole in the ceiling of his cell that leaked water every time it rained and finding that

22

plaintiff’s claim was nothing more than a negligence claim and not cognizable under 42 U.S.C.

23

§ 1983); and Sylla v. City of N.Y., 2005 WL 3336460, *1-4 (E.D. N.Y. Dec. 8, 2005) (dismissing

24

plaintiff’s deliberate indifference claim where correctional officer ordered plaintiff to use a

25

bathroom that the officer knew was flooded and plaintiff slipped and fell injuring his spine, neck,

26

back, and cervical collar because plaintiff “alleged nothing more than a slip-and-fall accident on

27

a wet bathroom floor” which does not meet the objective or subjective prongs of an Eighth

28

Amendment claim).

The courts have reached this conclusion, even where the hazard has
9

16cv84-JLS (BLM)

1

existed, and been known to prison officials, for years and where the prisoner was required to

2

use the dangerous location, such as a bathroom. See Hall, 2016 WL 2898712 at *1-*5 and n.1;

3

see also Seymore, 2014 WL 641428 at *4; Shannon, 2016 WL 1559583 at *1; and Sylla, 2005

4

WL 3336460 at *1-*4.

5

The Ninth Circuit Court of Appeals has held that “[s]lippery floors without protective

6

measures could create a sufficient danger to warrant relief” where the plaintiff has some known

7

exacerbating condition.

8

defendants’ summary judgment motion with respect to Plaintiff’s claim that prison officials failed

9

to take reasonable measures to guarantee his safety where prisoner had a broken leg that was

10

repeatedly reinjured when he slipped and fell in the slippery shower that was not handicap-

11

accessible).

12

requirement, a district court has concluded that “the risk of harm turns into a substantial risk of

13

serious harm somewhere between a bare claim of a slippery floor and a claim of a hazard plus

14

some known exacerbating condition.” Washington v. Sandoval, 2012 WL 987291, at * 8 (N.D.

15

Cal. Aug. 6, 2012).

Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998) (denying

While the Ninth Circuit has not provided further guidance on this additional

16

Plaintiff argues that he has alleged the required danger plus exacerbating condition by

17

explaining the dangerous condition of the track and the fact that Defendant Madden enforces a

18

policy requiring inmates to use the track for exercise and to walk to meals and a policy preventing

19

the repair of the track without the requested funds from Sacramento. See Oppo. 1 at 12. In

20

making this argument, Plaintiff relies on Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987), in

21

which the Second Circuit reversed the district court’s dismissal of plaintiff’s complaint alleging

22

violations of his Eighth and Fourteenth Amendment rights and found that plaintiff stated a

23

colorable claim when he alleged that he was ordered to continue working on a ladder after he

24

informed the correctional officer that the ladder was unsafe which lead to him falling off of the

25

ladder and injuring himself. Gill is distinguishable from the instant matter.

26

instances, the level of likely injury from falling off a ladder is more serious than that likely to be

27

incurred falling on a track. While there is a risk of harm in falling on a track, it is not a substantial

28

risk of serious harm. Second, Plaintiff “has not pled any conditions which rendered him unable
10

First, in most

16cv84-JLS (BLM)

1

to ‘provide for [his] own safety’” as he was not precluded from walking around any cracks or

2

avoiding the damaged portions of the track and he was not required to jog. Osolinski v. Kane,

3

92 F.3d 934, 938–39 (9th Cir. 1996); see also Frost, 152 F.3d at 1129 (plaintiff had broken leg

4

which made it very dangerous to use the non-handicap accessible bathroom). In contrast, an

5

inmate forced to use a defective ladder to complete his work is unable to avoid the danger of

6

the ladder and provide for his or her own safety.

7

not alleged facts establishing the danger plus exacerbation contemplated by the Ninth Circuit.

The Court therefore finds that Plaintiff has

8

Plaintiff’s allegations regarding the condition of the track do not state a constitutional

9

violation. At most, Plaintiff has alleged negligence on the grounds that the track was not

10

properly maintained and “was in a severe state of disrepair.” FAC at 3. However, having to

11

walk or exercise on a poorly maintained track does not deprive Plaintiff “of the minimal civilized

12

measure of life's necessities.”5 Farmer, 511 U.S. at 834. Plaintiff also has not adequately alleged

13

that there was an exacerbating condition that elevated the condition of the track from risk of

14

harm to substantial risk of serious harm. See Washington, 2012 WL 987291, at *8 (stating that

15

a condition posing a substantial risk of serious harm requires a claim of hazard plus “some known

16

exacerbating condition”). Because Plaintiff has not shown that the D-Yard track is in a condition

17

posing a substantial risk of serious harm or depriving him of a life necessity, the objective

18

requirement of an Eighth Amendment deliberate indifference to safety claim is not met.
2. Subjective Prong

19
20

Even if Plaintiff had satisfied the objective prong of his failure to prevent harm claim, the

21

claim fails as he has not satisfied the subjective prong. Plaintiff states that Warden Madden

22

knew of the dangerous condition of the track and “allowed a custom or policy of ignoring it.”

23

FAC at 2. Specifically, Plaintiff alleges that Defendant Madden “is responsible for the custody,

24

treatment, training and discipline of all inmates under his charge” and “is tasked with developing

25

26
27
28

Some Eighth Amendment deprivation claims that have been found to survive the initial pleading
stages concern a complete lack of outdoor exercise, excessive noise, inadequate lighting,
inadequate ventilation, lack of personal hygiene supplies, and adequate food and water. See
Keenan v. Hall, 83 F.3d 1083, 1089-1091 (9th Cir. 1996).
5

11

16cv84-JLS (BLM)

1

a process to ensure that the living conditions for the inmate population are sufficient.” Id. at 3.

2

Plaintiff further alleges that Defendant Madden erred in waiting for requested funds to become

3

available to repair the track instead of utilizing inmate labor for the needed repairs or using

4

other funds intended for less serious issues. Id.

5

Defendants contend that Plaintiff’s allegation that “Warden Madden would by virtue of

6

his position ‘know’ that the condition of an asphalt track posed a danger to Plaintiff is not

7

plausible or entitled to the presumption of truth.” MTD 1 at 15. Thus, Defendants assert that

8

Plaintiff failed to state a claim for deliberate indifference on the part of Warden Madden. Id. at

9

16. Plaintiff opposes Defendants’ position and argues that Defendant Madden was aware of the

10

hazardous condition of the track as evidenced by his requests for funds to repair the track and

11

that despite this knowledge, Defendant Madden enforced a policy that required inmates to walk

12

on the track if they wanted to walk, jog, or obtain a meal in the dining hall. Oppo. 1 at 6-7.

13

Plaintiff reiterates that Defendant Madden could have repaired the track with inmate labor or

14

other funds, but failed to do so. Id. at 7.

15

To state a claim for a constitutional violation under Section 1983, a plaintiff “must plead

16

facts sufficient to show that [his] claim has substantive plausibility.” Johnson v. City of Shelby,

17

135 S.Ct. 346, 347 (2014) (citing Bell Atlantic Corp., 550 U.S. at 544; Ashcroft, 556 U.S. at 662).

18

Government officials are not liable under § 1983 for their subordinates’ unconstitutional conduct

19

based on respondeat superior or another theory of vicarious liability, and plaintiff is required to

20

plead that “each Government-official defendant, through the official’s own individual actions,

21

has violated the Constitution.” See Iqbal, 556 U.S. at 676; see also Monell v. Dep’t of Soc.

22

Servs., 436 U.S. 658, 691 (1978) (finding no vicarious liability for a municipal “person” under 42

23

U.S.C. § 1983)).

24

A supervisor may be individually liable under § 1983 “if there exists either (1) his or her

25

personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

26

between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652

27

F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).

28

To be held liable, a supervisor need not be physically present when the alleged constitutional
12

16cv84-JLS (BLM)

1

injury occurs nor be “directly and personally involved in the same way as are the individual

2

officers who are on the scene inflicting constitutional injury.” Starr, 652 F.3d at 1205 (citation

3

omitted). Rather, the requisite causal connection is established when a supervisor “set[s] in

4

motion a series of acts by others,” or “knowingly refus[es] to terminate a series of acts by others

5

which [the supervisor] knew or reasonably should have known would cause others to inflict a

6

constitutional injury.” Id. at 1207-08 (citation omitted). A supervisor may also be held liable

7

for his “own culpable action or inaction in the training, supervision, or control of his subordinates,

8

for his acquiescence in the constitutional deprivation,” or “conduct that showed a reckless or

9

callous indifference to the rights of others.” Id. at 1208 (citation omitted). Additionally, a

10

supervisor may be held liable if he implements a “policy so deficient that the policy itself is a

11

repudiation of constitutional rights and is the moving force of the constitutional violation.”

12

Hansen, 885 F.2d at 646 (internal quotation marks and citation omitted).

13

Here, Plaintiff’s FAC names Warden Madden in his individual and official capacities. FAC

14

at 2. Plaintiff alleges that Defendant Madden is liable because of his duty as the Warden of

15

Centinela State Prison. See id. As such, this is a respondeat superior claim and Defendant

16

Madden can only be liable if he was either personally involved in the alleged constitutional

17

deprivation, or there is a causal connection between Defendant Madden and the alleged

18

violation. See Starr, 652 F.3d at 1207. Plaintiff does not allege that Defendant Madden was

19

personally involved, but does allege that he implemented policies that exacerbated the

20

dangerous condition of the track and hampered the repair of the track. FAC at 3. The first

21

policy, that the track could only be repaired with specifically requested funds, is insufficient to

22

establish a causal connection to Plaintiff’s alleged constitutional deprivation. Plaintiff did not

23

offer any allegations or facts showing how a policy of requesting funds to fix the track caused

24

Plaintiff’s deprivation of constitutional rights. See Neely v. Romero, 2016 WL 5235049, at *3-4

25

(E.D. Cal. Sept. 21, 2016) (plaintiff failed to state a claim against the defendant because he did

26

not show that defendant was personally involved or that his deprivation was the result of a

27

deficient policy). Plaintiff also fails to provide any support for his assertion that Defendant

28

Madden did not have to rely on the requested funds and could have used inmate labor or other
13

16cv84-JLS (BLM)

1

monies to repair the track. FAC; see also Easter, 694 F. Supp. 2d at 1183 (“[v]ague and

2

conclusory allegations of official participation in civil rights violations are not sufficient to

3

withstand a motion to dismiss”) (quoting Ivey, 673 F.2d at 268).

4

The second policy that inmates must walk on the track to and from the dining hall, is

5

also not causally connected to Plaintiff’s deliberate indifference to safety claim. Plaintiff was not

6

walking to or from breakfast or dinner when he tripped and fell on the track.

7

Therefore, this policy did not cause Plaintiff’s alleged constitutional deprivation and his accident

8

could have occurred regardless of this policy.

9

Additionally, neither the first nor the second policy is in and of itself a “repudiation of

10

constitutional rights.” Hansen, 885 F.2d at 646 (internal quotation marks and citation omitted).

11

The third policy, that inmates must only walk or jog on the track counterclockwise, is the

12

most causally related to Plaintiff’s alleged constitutional deprivation because he was running on

13

the track when he tripped and fell. FAC at 3. However, this policy is still insufficient to establish

14

Defendant Madden’s liability under § 1983 because Plaintiff has not alleged that Defendant

15

Madden implemented “a policy so deficient that the policy itself is a repudiation of constitutional

16

rights and is the moving force of the constitutional violation.” Hansen, 885 F.2d at 646 (internal

17

quotation marks and citation omitted). Requiring inmates to run on a track, even if that track

18

is deteriorated, does not constitute a deficient policy supporting a constitutional violation. As a

19

result, Plaintiff has not alleged facts supporting a finding that Defendant Madden implemented

20

the policy with deliberate indifference to a substantial risk of harm.

FAC at 3.

See Neely, 2016 WL 523049, at * 3-4.

21

Plaintiff’s vague and conclusory allegations have not shown a causal link between

22

Defendant Madden and the constitutional violation. See Henry v. Sanchez, 923 F. Supp. 1266,

23

1272 (C.D. Cal. 1996) (“A supervisory official, such as a warden, may be liable under Section

24

1983 only if he was personally involved in the constitutional deprivation, or if there was a

25

sufficient causal connection between the supervisor’s wrongful conduct and the constitutional

26

violation.”).

27

Amendment deliberate indifference to safety claim.

28

objective nor subjective requirements, the Court RECOMMENDS that Defendants’ motion to

Accordingly, Plaintiff cannot meet the subjective requirement of an Eighth

14

Because Plaintiff satisfies neither the

16cv84-JLS (BLM)

1

dismiss Plaintiff’s Eighth Amendment claim of deliberate indifference to his safety against

2

Defendant Warden be GRANTED WITH LEAVE TO AMEND. See Ramirez, 334 F.3d at 861

3

(court must grant a pro se plaintiff leave to amend his complaint "unless the pleading could not

4

possibly be cured by the allegation of other facts") (citing Lopez v. Smith, 203 F.3d 1122, 1130-

5

31 (9th Cir. 2000) (en banc)).

6

B. Eighth Amendment Deliberate Indifference to Medical Care Claim Against

7

Defendant Ortega

8

Plaintiff alleges that Defendant Ortega violated his constitutional rights because he was

9

deliberately indifferent to his serious medical need. FAC at 6. Plaintiff asserts that Defendant

10

Ortega provided constitutionally inadequate medical care for three months after Plaintiff’s fall by

11

failing to believe Plaintiff’s claims and failing to order appropriate tests, which resulted in Plaintiff

12

enduring ongoing pain and then an emergency surgery once the correct diagnostic tests were

13

performed. Id. at 6-7. Defendants contend that Plaintiff’s attachments to his First Amended

14

Complaint establish that Defendant Ortega “provided necessary, adequate, and timely medical

15

care to Plaintiff.” MTD 1 at 16. Plaintiff opposes Defendants’ position arguing that in addition

16

to providing inadequate medical care for several months, Defendant Ortega interfered with

17

Plaintiff’s treatment and recovery once the injury was properly diagnosed and Plaintiff underwent

18

surgery. Oppo. 1 at 20-23.

19

A prison official’s “deliberate indifference to a prisoner’s serious illness or injury” violates

20

the Eighth Amendment’s proscription against cruel and unusual punishment. See Clement v.

21

Gomez, 298 F.3d 898, 904 (9th Cir. 2002). A prisoner must satisfy an objective and a subjective

22

requirement to assert an Eighth Amendment violation. Id. The objective requirement is satisfied

23

so long as the prisoner alleges facts to show that his medical need is sufficiently “serious” such

24

that the “failure to treat [the] condition could result in further significant injury or the

25

unnecessary and wanton infliction of pain.” Id. (internal quotation marks and citation omitted);

26

Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). The subjective component

27

requires the prisoner to allege facts showing a culpable mental state, specifically, “deliberate

28

indifference to a substantial risk of serious harm.” Farmer, 511 U.S. at 836. The indifference
15

16cv84-JLS (BLM)

1

must be substantial, and inadequate treatment due to malpractice, or even gross negligence

2

does not rise to the level of a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 106

3

(1976). Indifference “may appear when prison officials deny, delay, or intentionally interfere

4

with medical treatment, or it may be shown by the way in which prison physicians provide

5

medical care.” Tracey v. Sacramento Cnty. Sheriff, 2008 WL 154607, at *2 (E.D. Cal. Jan. 15,

6

2008) (quoting Hutchinson v. U.S., 838 F.2d 390, 392 (9th Cir. 1988)).

7

“Mere delay of medical treatment, without more, is insufficient to state a claim of

8

deliberate medical indifference.” Robinson v. Catlett, 725 F. Supp. 2d 1203, 1208 (S.D. Cal. July

9

19, 2012) (quoting Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

10

1985)). To state a claim for deliberate indifference arising from a delay in treatment, a prisoner

11

must allege that the delay was harmful, although an allegation of substantial harm is not

12

required. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1991), overruled on other grounds

13

by, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Factual allegations indicating that

14

the official “sat idly by as [the prisoner] was seriously injured despite the defendant’s ability to

15

prevent the injury” or that the official “repeatedly failed to treat an inmate properly . . . strongly

16

suggests that the defendant’s actions were motivated by ‘deliberate indifference’ to the

17

prisoner’s medical needs.” Id. at 1060-61. “In sum, the more serious the medical needs of the

18

prisoner, and the more unwarranted the defendant’s actions in light of those needs, the more

19

likely it is that a plaintiff has established ‘deliberate indifference’ on the part of the defendant.”

20

Id. at 1061. Isolated incidents relative to a plaintiff’s overall treatment suggests no deliberate

21

indifference. Id. at 1060.

22

1. Objective Prong

23

Plaintiff satisfies the objective prong of the test for an Eighth Amendment violation. A

24

“serious” medical need exists if the failure to treat a prisoner’s condition could result in further

25

significant injury or the “unnecessary and wanton infliction of pain.” Nawabi v. Wyatt, 2009 WL

26

3514849, at *7 (C.D. Cal., Oct. 26, 2009) (citing Estelle, 429 U.S. 97 at 104). In considering

27

the seriousness of an alleged medical need, courts should consider whether (1) a reasonable

28

doctor would think that the condition is worthy of comment or treatment; (2) the condition
16

16cv84-JLS (BLM)

1

significantly affects the prisoner’s daily activities; and (3) the condition is chronic and

2

accompanied by substantial pain. Id. (citing Doty v. County of Lassen, 37 F.3d 540 at 546 n.3)

3

(9th Cir. 1994).

4

Here, the Court must accept as true that Plaintiff fell down and seriously injured his neck

5

which resulted in the need for surgery.

FAC at 6-7.

In addition, Plaintiff had to endure

6

substantial pain for several months until his injury was properly diagnosed and the surgery was

7

performed. Id. at 6-7, 47. A reasonable doctor is likely to think that an injury that requires

8

surgery for a traumatic herniated disk with mylopathy is worthy of comment or treatment. While

9

Plaintiff does not allege that his injury affects his daily activities, he does allege that the injury

10

has been life changing for him as he now has a permanent metal rod implanted in his spine and

11

that he will be “impaired for the rest of [his] life.” Id. at 42. Under these facts, Plaintiff states

12

a plausible allegation of a “serious illness or injury.” McGuckin, 974 F.2d at 1061-62 (finding

13

that a prisoner’s herniated nucleus pulposus, which required surgery, is sufficiently serious for

14

Eighth Amendment purposes).
2. Subjective Prong

15
16

Plaintiff has failed to allege facts supporting his claim that Defendant Ortega was

17

deliberately indifferent to a substantial risk of serious harm to Plaintiff resulting from his medical

18

care after his fall on the track. Plaintiff’s First Amended Complaint states that he was examined

19

by Defendant Ortega a few days after his fall on the track and that Defendant Ortega

20

“continuously down played Plaintiff’s pain,” ignored Plaintiff’s complaints that Ibuprofen was

21

insufficient to treat his pain, and accused Plaintiff of “faking his injuries.” FAC at 6. Plaintiff

22

alleges that Defendant Ortega treated Plaintiff multiple times “in much the same manner as the

23

first time.” Id. Plaintiff claims that “although Defendant Ortega was making the appearance of

24

treating Plaintiff, in actuality he was not.” Id.

25

The medical records provided by Plaintiff undercut Plaintiff’s claim that Defendant Ortega

26

was deliberately indifferent to Plaintiff’s medical needs.6

27

28

6

The records demonstrate that

Plaintiff’s First Amended Complaint does not provide the specific dates of his medical treatment.
17

16cv84-JLS (BLM)

1

Defendant Ortega first examined Plaintiff in April 20157 and reported a head contusion with loss

2

of consciousness, an unsteady sensation while walking, and lower extremity weakness. Id. at

3

47.

4

ordered an urgent head CT scan and a right shoulder x-ray. Id. On April 6, 2015, an x-ray was

5

taken of Plaintiff’s right shoulder. Id. at 18. Plaintiff’s CT scan also was taken in April 2015. Id.

6

at 47.8

7

pathology.” Id. Plaintiff continued to report an unsteadiness while walking and mild neck pain

8

and Defendant Ortega ordered a cervical spine x-ray.9 Id. Plaintiff’s cervical spine x-ray was

9

taken on April 20, 2015, and showed “[n]o fracture or subluxation,” that “[d]isc spacing and

10

alignment is normal,” and there is “[n]o prevertebral soft tissue swelling.” Id. at 20. Plaintiff

11

continued to complain of an unsteady gait and a sensation of generalized weakness. Id. at 47.

12

Defendant Ortega again examined Plaintiff in May 2015 and determined that his muscle strength

13

and gait were normal, but showed “abnormal lower extremity reflexes.” Id. In response to

14

Plaintiff’s abnormal lower extremity reflexes, Defendant Ortega ordered an MRI of the cervical

15

spine, which was taken in May 2015 and showed “cervical spine disc bulge with cord

16

compression.”10 Id. Upon review of the MRI, the facility clinic doctor referred Plaintiff to an

17

outside hospital for surgery.11

18

19

21

See FAC. The Court will refer to the medical treatment dates generally based on the operative
complaint. However, Plaintiff’s original Complaint provides specific treatment dates. See Comp.
The Court will identify the specific dates of treatment set forth in the original Complaint in
footnotes.

22

7

On April 2, 2015. Comp. at 7, 65-68.

23

8

Plaintiff was seen for the CT scan on April 15, 2015. Comp. at 81-85.

20

24
25
26

Despite Defendant Ortega’s examination “show[ing] no focal neurological deficits,” he

Plaintiff’s x-ray was normal and the head CT scan “was negative for intracranial

Id.

Plaintiff underwent “cervical spine surgery of C4-C5

9

Plaintiff saw Defendant Ortega for a follow-up exam after his x-ray on April 16, 2015. Comp.
at 84-85.

27

Defendant Ortega ordered an MRI of Plaintiff’s cervical spine on May 21, 2015. Comp. at 106110, 107. The MRI results were received on May 29, 2015. Id.

28

11

10

On June 20, 2015, the MRI results were explained to Plaintiff and he was transferred to a
18

16cv84-JLS (BLM)

1

diskectomy and fusion” on June 22, 2015.12 Id.

2

The record shows that Plaintiff was repeatedly treated by Defendant Ortega from April

3

2015 to June 2015. Id. Defendant Ortega did not deny, delay, or intentionally interfere with

4

Plaintiff’s medical treatment.

5

medications, ordered a CT scan [id. at 47], a right shoulder x-ray [id. at 18], a cervical spine x-

6

ray [id. at 20], and an MRI [id. at 47] to determine the cause of Plaintiff’s complaints. Id. at 6.

7

Defendant Ortega exhibited an interest in accurately diagnosing Plaintiff’s pain through his

8

numerous examinations and continued to investigate Plaintiff’s symptoms even after receiving

9

normal x-rays and a normal CT Scan. See id. While a three-month delay between the injury

10

and Plaintiff’s surgery is not ideal, there is no evidence that Defendant Ortega deliberately failed

11

to provide adequate medical care to Plaintiff. See McGuckin, 974 F.2d at 1061-62 (finding that

12

the defendants were not deliberately indifferent where they began treating the plaintiff in April

13

1989 with mild painkillers for one month, then in May ordered a CT scan and MRI which were

14

taken in August, and finally referring the plaintiff for surgery in late August 1989 which took

15

place in December 1989); see also Robinson, 725 F. Supp. 2d at 1208 (finding that a mere delay

16

in receiving treatment is insufficient to show deliberate indifference).

17

records establish that Defendant Ortega provided ongoing diagnostic testing and medical care

18

to Plaintiff in an effort to determine the exact extent and cause of his pain and other symptoms.

19

Even accepting as true Plaintiff’s allegations that Defendant Ortega discounted his claims and

20

symptoms, at most, the evidence could establish negligence or malpractice, neither of which

On the contrary, Defendant Ortega prescribed mild pain

Rather, the medical

21
22
23
24
25
26
27
28

higher level of care. Comp. at 110-116. On the same day, Plaintiff saw Dr. Blake Berman, at
Desert Regional Medical Center, who reviewed Plaintiff’s MRI and found some abnormalities. Id.
at 135. That day, Plaintiff saw Dr. Gregory Lepkowski at El Centro Regional Medical Center,
who transferred Plaintiff to a medical facility with a neurosurgeon. Id. at 119-125. On June 21,
2015, Plaintiff was admitted to the hospital. Id. at 148.
Plaintiff had several follow-up appointments with various doctors after his surgery. Comp. at
149-169. On July 29, 2015, Plaintiff had a follow-up appointment with Defendant Ortega and
reported that the he was improving gradually. Id. at 156-157. Plaintiff again saw Defendant
Ortega for a post-surgery follow-up appointment on August 18, 2015. Id. at 166-167.
12

19

16cv84-JLS (BLM)

1

constitutes a constitutional violation. Estelle, 429 U.S. at 106. Additionally, another doctor, Dr.

2

Seely, examined Plaintiff in April 2015 and also concluded that Plaintiff had a normal neurological

3

exam with improving symptoms, and normal gait and ambulation. FAC at 47.

4

As such, Plaintiff has not alleged facts establishing the subjective prong of an Eighth

5

Amendment deliberate indifference to medical care claim. Because the relevant medical records

6

dramatically undercut Plaintiff’s argument and establish that Defendant Ortega was not

7

deliberately indifferent to Plaintiff’s medical issues, the Court RECOMMENDS that Defendants’

8

motion to dismiss Plaintiff’s Eighth Amendment claim of deliberate indifference to his medical

9

needs against Defendant Ortega be GRANTED WITHOUT LEAVE TO AMEND. See Ramirez,

10

334 F.3d at 861 (court may dismiss without leave to amend if the pleading cannot be cured by

11

the addition of other facts).

12

C. Injunctive Relief - Defendant Ortega

13

Plaintiff is seeking injunctive relief to prevent Defendant “Ortega from acting as Plaintiff’s

14

care provider.” FAC at 9. The Eleventh Amendment permits "suits for prospective injunctive

15

relief against state officials acting in violation of federal law." Frew ex rel. Frew v. Hawkins, 540

16

U.S. 431, 437 (2004). Thus, injunctive relief is available if there is a "real or immediate threat

17

that the plaintiff will be wronged again." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

18

Injunctive relief is appropriate only when "irreparable injury" is threatened. Id. To establish

19

irreparable injury, a plaintiff must demonstrate a "real or immediate threat that [he] will be

20

wronged again-a 'likelihood of substantial and immediate irreparable injury." Id. "A state law

21

enforcement agency may be enjoined from committing constitutional violations where there is

22

proof that officers within the agency have engaged in a persistent pattern of misconduct."

23

Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (quoting Thomas v. County of Los

24

Angeles, 978 F.2d 504, 508 (9th Cir. 1992)); and Walters v. Reno, 145 F.3d 1032, 1048 (9th

25

Cir. 1998) ("Injunctive relief is appropriate in cases involving challenges to government policies

26

resulting in a pattern of constitutional violations").13

27

28

13

The standard for injunctive relief must be considered in conjunction with the Prison
20

16cv84-JLS (BLM)

1

Here, Plaintiff has not alleged any facts demonstrating that Defendant Ortega violated

2

federal law. Plaintiff also has failed to allege or demonstrate that there is a "real or immediate

3

threat” that he will be wronged again or that there is a “likelihood of substantial and immediate

4

irreparable injury." Lyons, 461 U.S. at 111. Additionally, Plaintiff has not alleged a persistent

5

pattern of misconduct by officials that would support any type of injunction.

6

Accordingly, the Court RECOMMENDS that Plaintiff’s request for injunctive relief be

7

DENIED.

8

II.

DEFENDANT BELTRAN’S MOTION TO DISMISS

9

Plaintiff alleges that Defendant Beltran violated his Eighth Amendment right to adequate

10

medical care when Defendant Beltran told Plaintiff “he would have to put in a medical request

11

slip if he wanted to be seen by a doctor.” FAC at 5. Plaintiff explained that, “[a]t this time this

12

was a difference in medical opinion[,] so Defendant Beltran is only sued in his official capacity.”

13

Id. Plaintiff requests monetary damages for Defendant Beltran’s conduct. Id. at 9. Defendant

14

Beltran contends that he is immune from suit under the Eleventh Amendment because Plaintiff

15

only sues him in his official capacity and only seeks compensatory, special, and punitive

16

17

Litigation Reform Act ("PLRA"). The PLRA provides, in relevant part:

18
19
20
21
22
23
24
25
26
27
28

Prospective relief in any civil action with respect to prison conditions shall extend
no further than necessary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such relief is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the Federal
right. The court shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the relief
18 U.S.C. § 3626(a)(1)(A). Under the PLRA, the court must find that the prospective relief is
"narrowly drawn, extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the Federal right," before
granting injunctive relief. 18 U.S.C. § 3626(a)(1); see also Gomez, 255 F.3d at 1128-9.
Additionally, the court must give "substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the relief." Id. at 1129 (citing Oluwa v.
Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998) (quoting 18 U.S.C. § 3626(a)(1)) (holding that
Congress explicitly prescribed section 3626's reach to include pending cases).
21

16cv84-JLS (BLM)

1

damages. Id.; see also MTD 2 at 4. Plaintiff responds that Defendant Beltran should not be

2

dismissed because Plaintiff has pled facts that support suing Defendant Beltran in both his

3

individual and official capacity, despite his error in only suing him in his official capacity. Oppo.

4

2. at 4. Plaintiff further argues that “it could be inferred that [he] was attempting to seek

5

declaratory and/or injunctive relief” from the policy under which Defendant Beltran required

6

Plaintiff to submit a request to see a doctor. Id. at 6. Plaintiff also argues that Defendant

7

Beltran had a duty to provide Plaintiff with medically necessary services the same day as his

8

injury and that the Motrin Defendant Beltran gave to Plaintiff was not sufficient to meet that

9

standard. Id. at 8. Plaintiff requests that Defendant Beltran not be dismissed and that he be

10

given leave to amend his FAC so that he may “clarify all inartfully [sic] pled theories alleged

11

against Beltran.” Id. at 9.

12

“The Eleventh Amendment bars actions for damages against state officials who are sued

13

in their official capacities in federal court.” Dittman v. California, 191 F.3d 1020, 1026 (9th Cir.

14

1999); see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (a suit for damages

15

against a state official in his or her official capacity is really a suit against the state itself, which

16

is prohibited by the Eleventh Amendment). As discussed herein, Plaintiff sues Defendant Beltran

17

only in his official capacity and requests monetary damages - specifically, compensatory and

18

punitive damages in a sum “to be determined by the court or a jury,” and “special damages for

19

any lost future wages and pre-judgment interest on all monitary [sic] awards.” FAC at 9. The

20

district court has no jurisdiction over this claim and RECOMMENDS that Defendants’ motion to

21

dismiss Plaintiff’s claims for monetary damages against Defendant Beltran in his official capacity

22

be GRANTED WITHOUT LEAVE TO AMEND. Dittman, 191 F.3d at 1026 (“The Eleventh

23

Amendment bars actions for damages against officials who are sued in their official capacities

24

in federal court”); see also Ramirez, 334 F.3d at 861 (court may dismiss without leave to amend

25

if the pleading cannot be cured by the addition of other facts).

26

Plaintiff indicates that if permitted to amend his complaint, he would seek declaratory

27

and injunctive relief from the policy that Defendant "Beltran might have been complying with."

28

Oppo. 2 at 6. Plaintiff describes the policy as requiring "that someone such as Plaintiff who
22

16cv84-JLS (BLM)

1

sustained a spinal/neck fracture, lost consciousness [a]nd had to be carried to the prison's clinic

2

would then 'have to put in a medical request slip if he wanted to be seen by a doctor' after

3

complaining of severe pain" and “a policy, custom, or rule that won[‘]t allow an inmate to be

4

treated by anyone more qualified then [sic] a nurse unless he first submitts [sic] a request for

5

treatment regardless of how serious or complicated the issue.” Oppo. 2 at 5 (quoting FAC at

6

5); see also FAC at 2. Even if the Court permitted Plaintiff to amend the FAC, Plaintiff could not

7

state a claim for injunctive relief. Plaintiff has not and cannot allege that there is a "real or

8

immediate threat that [he] will be wronged again." Lyons, 461 U.S. at 111; see also Jones v.

9

Dovery, 2008 WL 733468, at *10 (S.D. Cal. Mar. 18, 2008) (adopting the magistrate judge’s

10

report and recommendation recommending dismissal of Plaintiff’s claims for injunctive relief

11

after finding that “Plaintiff has not alleged that an irreparable injury is threatened, or provided

12

any proof that Defendants have engaged in a persistent pattern of misconduct.”). Plaintiff no

13

longer has a spinal/neck fracture, no longer requires surgery, and is not at all likely to again find

14

himself at the mercy of an alleged policy requiring "that someone [] who sustained a spinal/neck

15

fracture, lost consciousness [a]nd had to be carried to the prison's clinic would then 'have to put

16

in a medical request slip if he wanted to be seen by a doctor' after complaining of severe pain."

17

Oppo. 2 at 5 (quoting FAC at 5). In addition, Plaintiff must establish standing for his claim for

18

relief which includes showing that "he is under threat of suffering an injury in fact that is concrete

19

and particularized [and that] the threat [is] actual and imminent, not conjectural or hypothetical

20

[and] fairly traceable to challenged conduct of the defendant. Lopez v. Cate, 2013 WL 239097,

21

*13 (E.D. Cal. Jan. 22, 2013) (citing Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009)

22

and Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010)). While it is true that Plaintiff

23

may again one day find himself needing to see a doctor and having to submit a formal request

24

before he can do so, that is conjectural or hypothetical and not a concrete or particularized

25

injury. Id. Here, the alleged wrong - that Plaintiff had to submit a formal request to see a

26

doctor for his neck pain - has already taken place and was remedied when Plaintiff began seeing

27

Doctors Ortega, Seely, Quazi, and others to treat his injury. Plaintiff does not allege that has

28

had any problems as a result of the policy at issue since he was first injured. Accordingly, the
23

16cv84-JLS (BLM)

1

Court RECOMMENDS that Plaintiff’s request to amend his FAC to seek declaratory and/or

2

injunctive relief from the “policy, custom, or rule that won[‘]t allow an inmate to be treated by

3

anyone more qualified then [sic] a nurse unless he first submitts [sic] a request for treatment

4

regardless of how serious or complicated the issue” [see FAC at 2] be DENIED.

5

Finally, even if as Plaintiff requests, he was permitted to amend his complaint and sue

6

Defendant Beltran in his individual capacity, Plaintiff's allegations would fail. In his FAC and

7

Oppo. 2, Plaintiff alleges that Defendant Beltran violated his Eighth Amendment right to

8

adequate medical care by denying him an immediate doctor visit and, instead, requiring him to

9

submit a formal request in accordance with prison policy. FAC at 5; see also Oppo. 2 at 2-3, 5.

10

Plaintiff himself characterized this as a "difference in medical opinion." FAC at 5. It is clearly

11

established law that "a difference of opinion between a prisoner-patient and prison medical

12

authorities regarding treatment does not give rise to a [§] 1983 claim.” Johnson v. Fortune,

13

2016 WL 1461516, at *2 (E.D. Cal. Apr. 14, 2016) (quoting Franklin v. Oregon, 662 F.2d 1337,

14

1344 (9th Cir. 1981)). If it did give rise to a claim, Plaintiff would be unable to satisfy both the

15

objective and subjective requirements to assert an Eighth Amendment violation. As stated

16

above, Plaintiff has satisfied the objective prong of the test for an Eighth Amendment violation,

17

as a reasonable doctor is likely to think that pain and injury sustained after falling and injuring

18

yourself such that you later require surgery is worthy of comment or treatment, and Plaintiff

19

now has a permanent metal rod implanted in his spine. See above Section IB(1). However,

20

Plaintiff has not and cannot satisfy the second prong and show that Defendant Beltran was

21

deliberately indifferent to a substantial risk of serious harm. In his FAC, Plaintiff states that

22

Defendant Beltran prescribed him 600 mg of Motrin/Ibuprofen for his pain after he was first

23

seen by triage nurses Pacheco and Johnson who treated Plaintiff's "superficial wounds." FAC at

24

5. Plaintiff does not say that Defendant Beltran could have done anything else for his injuries.14

25

26
27
28

See Corwin v. City of Indep., MO., 829 F.3d 695, 698–99 (8th Cir. 2016) ((1) affirming district
court’s finding that nurse was not deliberately indifferent to detainee’s serious medical needs
and granting summary judgment where nurse examined plaintiff’s hand, prescribed over the
over-the-counter pain medication, applied an ACE bandage wrap, and placed plaintiff on the list
14

24

16cv84-JLS (BLM)

1

FAC. Plaintiff does not allege that there were any doctors around and available who could have

2

treated him immediately even if Defendant Beltran had not required Plaintiff to submit a formal

3

request. Id. Defendant Beltran provided medical care, informed Plaintiff of how to obtain an

4

appointment with a doctor, and did not deny, delay, or intentionally interfere with medical

5

treatment. See Hartsfield v. Colburn, 491 F.3d 394, 398 (8th Cir. 2007) (affirming District Court’s

6

finding in favor of defendants where plaintiff alleged deliberate indifference due to a prison

7

policy requiring him to submit a second sick call request to receive medical treatment that

8

resulted in a very painful delay before having three teeth extracted, and noting that the District

9

Court found that “[s]ick call requests were Jail policy, and it was not unreasonable for medical

10

staff to tell Hartsfield how to request more medical attention and expect him to comply”); see

11

also Jenkins v. Cty. of Hennepin, Minn., 557 F.3d 628, 633–34 (8th Cir. 2009) (stating that “a

12

policy that results in delayed treatment is not unconstitutional unless it evinces deliberate

13

indifference to serious medical needs. The Constitution does not require jailers to handle every

14

medical complaint as quickly as each inmate might wish”) (citing Johnson v. Hamilton, 452 F.3d

15

967, 972–73 (8th Cir. 2006) (concluding that a one-month delay in treating a fractured finger

16

did not rise to a constitutional violation)). Moreover as discussed above, Plaintiff was examined

17

by Dr. Ortega within a few days of his fall. See FAC at 6. Again, even if Defendant Beltran's

18

treatment of Plaintiff was found to be negligent or consisted of malpractice, neither of those rise

19

to the level of a constitutional violation.

20

The Court thus RECOMMENDS that Defendants’ motion to dismiss Plaintiff’s claims

21

against Defendant Beltran be GRANTED WITHOUT LEAVE TO AMEND.

22

///

23

///

24
25
26
27
28

of prisoners to be transported to the doctor, (2) rejecting plaintiff’s claims that the nurse should
have provided more aggressive treatment and obtained more timely medical care for plaintiff
from a doctor, and (3) noting that plaintiff failed to provide any medical evidence supporting a
claim that the delay cause plaintiff to suffer a detrimental effect).
25

16cv84-JLS (BLM)

CONCLUSION

1
2

For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue

3

an order: (1) approving and adopting this Report and Recommendation, (2) granting

4

Defendants’ Motions to Dismiss, and (3) denying Plaintiff’s request for injunctive relief.

5

IT IS HEREBY ORDERED that any written objections to this Report must be filed with

6

the Court and served on all parties no later than May 2, 2017. The document should be

7

captioned “Objections to Report and Recommendation.”

8

IT IS FURTHER ORDERED that any reply to the objections shall be filed with this Court

9

and served on all parties no later than May 23, 2017. The parties are advised that failure to

10

file objections within the specified time may waive the right to raise those objections on appeal

11

of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

12
13

IT IS SO ORDERED.
Dated: 4/4/2017

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26

16cv84-JLS (BLM)