Wilkens v. Gill et al

Filing 55

REPORT AND RECOMMENDATION re 49 and 51 Defendants' MOTIONS to Dismiss. Objections to R&R due by 2/21/2018. Replies due by 3/21/2018. Signed by Magistrate Judge William V. Gallo on 1/18/2018.(All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMAL LADELL WILKENS,

Case No.: 16-CV-1053-AJB (WVG)
Plaintiff,

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REPORT AND
RECOMMENDATION RE:
DEFENDANTS’ MOTIONS TO
DISMISS
[ECF NOS. 49, 51]

v.
DR. GILL, et al.,
Defendant.

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Presently before the Court is Defendants Dr. John C. Gill and Deputy Parrot’s

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motions to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure

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12(b)(6). (ECF Nos. 49 and 51, respectively.) For the reasons that follow, the Court

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RECOMMENDS Defendants’ motions be GRANTED and Defendants be DISMISSED

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WITH PREJUDICE.

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I. BACKGROUND

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Plaintiff filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983 on April 29,

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2016. (ECF No. 1.) Defendants Gill and Parrot each filed motions to dismiss the complaint

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on August 12, 2016 (ECF Nos. 13, 14), and the Court granted those motions with leave to

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amend on October 11, 2016 (ECF No. 20). On November 2, 2016, Plaintiff filed a First

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Amended Complaint. (ECF No. 21.) Defendants moved to dismiss the FAC (ECF Nos. 22,

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23), and the Court granted those motions with leave to amend on December 13, 2016 (ECF
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No. 24). Plaintiff then filed a Second Amended Complaint on January 3, 2017. (ECF No.

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25.) Defendants again filed a motion to dismiss, (ECF Nos. 29, 31), which the Court

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granted on May 4, 2017 (ECF No. 42.) On September 11, 2017, Plaintiff filed a Third

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Amended Complaint. (ECF No. 48.) Once again, Defendants have filed motions to dismiss

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the TAC. (ECF Nos. 49, 51.)

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II. LEGAL STANDARD

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Rule 12(b)(6) permits a party to raise by motion the defense that the complaint

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“fail[s] to state a claim upon which relief can be granted,” generally referred to as a motion

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to dismiss. Fed. R. Civ. P. 12(b)(6). The Court evaluates whether a complaint states a

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cognizable legal theory and sufficient facts in light of Rule 8(a), which requires a “short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

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P. 8(a). Although Rule 8 “does not require ‘detailed factual allegations,’ … it [does]

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demand [] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

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Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007)). In other words, “a plaintiff’s obligation to provide the ‘grounds’ of his

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‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing

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Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it tenders

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‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 677

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(citing Twombly, 550 U.S. at 557).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

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when the facts pled “allow [] the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to

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say that the claim must be probable, but there must be “more than a sheer possibility that a

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defendant has acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability”

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fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557).
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Further, the court need not accept as true “legal conclusions” contained in the complaint.

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Id. This review requires context-specific analysis involving the court’s “judicial experience

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and common sense.” Id. at 678 (citation omitted). “[W]here the well-pleaded facts do not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Id. The court will

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grant leave to amend unless it determines that no modified contention “consistent with the

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challenged pleadings … [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc.,

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957 F.2d 655, 658 (9th Cir. 1992) (citation omitted).

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Where, as here, a plaintiff appears pro se in a civil rights suit, the court also must be

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careful to construe the pleadings liberally and afford the plaintiff any benefit of the doubt.

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Garmon v. City of L.A., 828 F.3d 837, 846 (9th Cir. 2016). The rule of liberal construction

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is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261

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(9th Cir. 1992). In construing a pro se civil rights complaint liberally, however, a court

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may not “supply essential elements of the claim that were not initially pleaded.” Ivey v. Bd.

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of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and

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

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withstand a motion to dismiss.” Id. Thus, at a minimum, even a pro se plaintiff “must allege

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with at least some degree of particularity overt acts which defendants engaged in that

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support [his] claim.” Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.

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1984) (internal quotation and citation omitted).

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III. DISCUSSION

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A. Section 1983 Claims

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Section 1983 of the Civil Rights Act “is not itself a source of substantive rights, but

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a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S.

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137, 144 n.3 (1979). Rather, § 1983 imposes two essential proof requirements upon a

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plaintiff: (1) that a person acting under color of state law committed the conduct at issue;

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and (2) that the conduct deprived the claimant of some right protected by the Constitution

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of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981),
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overruled on other grounds by Daniel. v. Williams, 474 U.S. 327, 330-31 (1986); Haygood

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v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

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There appears to be no dispute that Deputy Parrot and Dr. Gill acted under the color

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of state law. Thus, Plaintiff’s federal claims are contingent upon the second inquiry -

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namely, whether Defendants deprived him of any “rights, privileges, or immunities secured

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by the Constitution and laws” of the United States. 42 U.S.C. § 1983.

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Similar to his second amended complaint, Plaintiff has failed to allege any facts that

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state a claim for relief pursuant to § 1983. Rather, Plaintiff has again made a series of legal

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conclusions, rendering the Third Amended Complaint insufficient on its face.

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Consequently, the Third Amended Complaint cannot withstand a motion to dismiss

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pursuant to Rule 12(b)(6). Ivey, 673. F.2d at 268. Accordingly, the Court

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RECOMMENDS Defendants’ motions to dismiss be GRANTED.

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B. Leave To Amend

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Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing

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party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). When determining

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whether to grant leave to amend, courts weigh certain factors: “undue delay, bad faith or

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dilatory motive on the part of [the party who wishes to amend a pleading], repeated failure

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to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

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party by virtue of allowance of the amendment, [and] futility of amendment[.]” Foman v.

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Davis, 371 U.S. 178, 182 (1962).

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Although prejudice to the opposing party “carries the greatest weight[,] … a strong

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showing of any of the remaining Foman factors” can justify denial of leave to amend.

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curium).

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Analysis of these factors can overlap. For instance, a party’s “repeated failure to cure

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deficiencies” constitutes “a strong indication that the [party] has no additional facts to

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plead” and “that any attempt to amend would be futile[.]” Zucco Partners, LLC v. Digimarc

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Corp., 552 F.3d 981, 988, 1007 (9th Cir. 2009) (internal quotation omitted) (upholding

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dismissal of complaint with prejudice when there were “three iterations of [the] allegations
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- none of which, according to [the district] court, was sufficient to survive a motion to

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dismiss”); see also: Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.

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2000) (affirming dismissal without leave to amend where plaintiff failed to correct

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deficiencies in complaint, where court afforded the plaintiff opportunities to do so, and had

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discussed with plaintiff the substantive problems with his claims), amended by 234 F.3d

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428, overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir.

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2007); Plumeau v. Sch. Dist. # 40 Cnty. Of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997)

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(denial of leave to amend appropriate where further amendment would be futile).

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Including the initial complaint, Plaintiff has now had four opportunities to state a

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claim for which relief could be granted. On October 11, 2016, the Honorable Marilyn L.

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Huff dismissed Plaintiff’s complaint against Parrot and Gill because “more facts [were]

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required regarding Plaintiff’s injuries” to demonstrate there was a serious medical need.

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(ECF No. 20 at 5:18) Judge Huff went on to advise Plaintiff that he “should provide more

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facts regarding the nature, frequency, and duration of his pain and swelling.” (Id. at 5:22 -

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24.) In regards to deliberate indifference, Judge Huff explained that “Plaintiff has not

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provided enough facts to establish what [Defendants] knew” and further explained that

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Plaintiff needed to allege how he was harmed. (Id. at 6:13 - 15.) Judge Huff advised

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Plaintiff to “address the problems described” in the order. (Id. at 7:7 - 8.)

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When dismissing Plaintiff’s first amended complaint, Judge Huff again explained to

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Plaintiff that his allegations against each defendant were deficient and allowed Plaintiff to

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file a second amended complaint that “addresses the problems described” in the order.

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(ECF No. 24 at 6:15 - 20.)

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When recommending dismissal of Plaintiff’s second amended complaint, this Court

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noted that Plaintiff had “failed to allege any facts[.]” (ECF No. 41 at 6:24 - 25) (emphasis

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in original). The Court went on further to explain that Plaintiff should have “added facts to

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cure the deficiencies” highlighted in his previous complaints. (Id. at 7:1 - 3.) The Court

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recommended that Plaintiff “should be granted one more opportunity to correct the

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deficiencies in his previous complaints while taking into account the Court’s guidance
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herein.” (Id. at 8:7 - 14) (emphasis added).

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Plaintiff has failed to address the errors pointed out in his previous three complaints.

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Plaintiff’s repeated failure to cure deficiencies is a strong indication to the Court that

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Plaintiff has no additional facts to plead. Given this, the Court finds that any further

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attempts to amend would be futile. Accordingly, the Court RECOMMENDS that

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Plaintiffs Third Amended Complaint be DISMISSED WITH PREJUDICE.

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IV. CONCLUSION

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For the reasons set forth herein, it is RECOMMENDED that defendants’ motion to

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dismiss be GRANTED and defendants Parrot and Gill be DISMISSED WITH

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PREJUDICE. This Report and Recommendation will be submitted to the United States

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District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)

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and Federal Rule of Civil Procedure 72(b).

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IT IS ORDERED that no later than February 21, 2018, any party to this action

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may file written objections with the Court and serve a copy on all parties. This document

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shall be captioned “Objections to Report and Recommendation.”

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

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the Court and served on all parties no later than March 21, 2018. The parties are advised

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that failure to file objections within the specified time may waive the right to raise those

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objections on appeal of the Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated: January 18, 2018

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