Wheeler v. Marengo et al

Filing 24

REPORT AND RECOMMENDATION re 21 MOTION to Dismiss. Objections to Report & Recommendation due by 12/23/2019. Replies due by 1/15/2020. Signed by Magistrate Judge William V. Gallo on 11/13/2019.(All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18-CV-360-AJB(WVG)

KENNETH WHEELER,
Plaintiff,

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REPORT AND
RECOMMENDATION
RE: MOTION TO DISMISS

v.
K. MARENGO et al.,
Defendants.

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Plaintiff Kenneth Wheeler, a state prisoner proceeding pro se and in forma pauperis,

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has filed an amended complaint under the Civil Rights Act, 42 U.S.C. § 1983. (ECF No.

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20.)1 Defendants Marengo, Lay, and Dominguez have filed a motion to dismiss the

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amended complaint.

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RECOMMENDS that Defendants’ motion be GRANTED and the Complaint be

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DISMISSED with prejudice.

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(ECF No. 21.)

For the reasons that follow, the Court

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All citations to documents filed on the Court’s CM/ECF system are to the system’s
electronically-generated pagination.
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I.
A.

BACKGROUND

Procedural Background

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On April 29, 2019, Plaintiff filed an amended complaint alleging Defendants

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violated his Eighth Amendment rights. On May 24, 2019, Defendants filed a motion to

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dismiss. On June 10, 2019, Plaintiff filed an opposition to the motion. A reply to the

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opposition has not been filed.

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B.

Factual Allegations2

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In 2016, Plaintiff was housed at the Richard J. Donovan Correctional Facility

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(‟RJD”) in San Diego, California. (See ECF No. 1 at 1.) Plaintiff claims that on October

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24, 2016, he suffered a serious injury to his knee, was transported by ambulance to RJD’s

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medical facilities, and his leg was placed in a cast. While at the medical facility, Plaintiff

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received a Comprehensive Accommodation Chrono (Chrono) requesting a lower-level

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bunk bed. (ECF No. 20 at 9.) When he returned to his housing unit with crutches and “in

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horrific pain,” Plaintiff alleges that he informed Defendant Marengo of the Chrono.

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Defendant Marengo told Plaintiff a lower bunk bed would be provided, but Defendant

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Marengo’s shift ended without Plaintiff receiving the lower bunk accommodation.

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Additionally, Plaintiff contends Defendant Marengo failed to inform subsequent officers

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of the lower bunk request.

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Defendant Dominguez then began the shift following Defendant Marengo’s shift.

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Plaintiff alleges that when Defendant Dominguez asked why Plaintiff was lying on the

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floor of his cell, Plaintiff told him he could not mount the top bunk, he asked for a bottom

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bunk, and he informed Defendant Dominguez of his lower bunk Chrono. However,

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Dominguez told Plaintiff nothing could be done until the next day. Plaintiff alleges he laid

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back on the floor because he could not climb to the top bunk and the bottom bunk was

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occupied by another inmate.

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Unless otherwise noted, all facts in this section are from page 3 of the First Amended
Complaint. (ECF No. 20.)
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The next day, Defendant Lay began the shift following Defendant Dominguez’s

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shift. Plaintiff alleges he explained to Defendant Lay that he had a lower bunk Chrono

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which could also be found in the computer system. Plaintiff alleges that Defendant Lay

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refused to give Plaintiff a lower bunk, refused to call command staff or medical staff, and

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ordered Plaintiff to return to the top bunk. Plaintiff alleges that he was without a lower

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bunk from 4:00 p.m. on October 24, 2016 until 9:00 p.m. on October 25, 2016—or for

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approximately twenty-nine hours.

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Based on these facts, Plaintiff alleges Defendants “disregarded [his] injury and

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medical condition[,] forcing [him] to remain on the floor and/or expecting [him] to get on

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the top bunk, disregarding the risk to [his] safety.” He also alleges Defendants ignored the

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instructions of his treating physician. Plaintiff thus attempts to allege violations of the

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Eighth Amendment based on Defendants’ deliberate indifference to his serious medical

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needs.

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II.
A.

LEGAL STANDARD

Rule 12(b)(6) Motion to Dismiss

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise a motion that the

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

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

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8 “does not require

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‘detailed factual allegations,’ . . . it [does demand] more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels

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and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do.” Twombly, 550 U.S. at 555 (citation omitted). “Nor does a complaint suffice if it

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

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

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“To survive a motion to dismiss, a claim 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 inferences that the defendant

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is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at

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557). That is not to say that the claim must be probable, but there must be “more than a

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sheer possibility that a defendant has acted unlawfully.” Id. Facts “merely consistent with

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a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly,

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550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained

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in the complaint. Id. This review requires context-specific analysis involving the Court’s

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“judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-

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pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

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the complaint has alleged—but it has not ‘show[n]’—’that the pleader is entitled to relief.’”

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Id.

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B.

Standards Applicable to Pro Se Litigants in Civil Rights Actions

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

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

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

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

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1258, 1261 (9th Cir. 1992).

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Moreover, a pro se litigant is entitled to notice of the deficiencies in the complaint

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and an opportunity to amend unless the complaint’s deficiencies cannot be cured by

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amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Noll v. Carlson,

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809 F.2d 1446, 1448 (9th Cir. 1987) (superseded on other grounds by statute as stated in

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Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). However, “courts should not have

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to serve as advocates for pro se litigants. A statement of deficiencies need not provide
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great detail or require district courts to act as legal advisors to pro se plaintiffs. Rather,

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when dismissing a pro se complaint for failure to state a claim, district courts need draft

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only a few sentences explaining the deficiencies.” Noll, 809 F.2d at 1448-49.

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III.

DISCUSSION

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Plaintiff asserts in his First Amended Complaint and opposition papers that his

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Eighth Amendment rights have been violated based on deliberate indifference to his

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medical needs, resulting in cruel and unusual punishment. He asserts in his opposition to

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Defendant’s Motion to Dismiss that he is not bringing his claim based on conditions of

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confinement. After the dismissal of his original Complaint, Plaintiff was given the

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opportunity to amend and cure deficiencies of fact in his complaint with recommendations

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and guidelines from the court. Reading the pleadings liberally, Plaintiff’s claim in his First

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Amended Complaint is still deficient for the reasons explained below. Because he had

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notice of the deficiencies in his complaint and did not allege enough facts to cure them, it

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is recommended that Plaintiff’s First Amended Complaint be dismissed with prejudice.

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A.

Deliberate Indifference to Plaintiff’s Medical Needs

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1.

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Under the Eighth Amendment, “[t]he government has an obligation to provide

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medical care for those whom it punishes by incarceration,” Hutchinson v. United States,

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838 F.2d 390, 392 (9th Cir. 1988), and cannot be deliberately indifferent to the medical

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needs of prisoners. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). When an inmate

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alleges that prison officials failed to attend to serious medical needs, he or she must show

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that the lack of response exhibits “deliberate indifference.” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006). “Such indifference may be manifested . . . when prison officials

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deny, delay or intentionally interfere with medical treatment.” Hutchinson, 838 F.2d at

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394; see also Jett, 439 F.3d at 1096; Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002).

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The two-part test for deliberate indifference requires the plaintiff to show (1) “a

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‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition could

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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and

Legal Background

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(2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at

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1096. In this Circuit, it has long been the law that “allegations that a prison official has

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ignored the instructions of a prisoner’s treating physician are sufficient to state a claim for

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deliberate indifference.” Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999); see

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also Webb v. Douglas Cty., 224 F. Appx. 647, 649 (9th Cir. 2007) (“The law in this circuit

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is clearly established that ‘a prison official acts with deliberate indifference when he

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ignores the instructions of the prisoner’s treating physician or surgeon.’”) (quoting

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Wakefield). However, “inadvertent [or negligent] failure to provide adequate medical care”

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alone does not state a claim under § 1983. Jett, 439 F.3d at 1096 (citing Estelle, 429 U.S.

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at 105).

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In addition to the above requirements, where the prisoner is alleging that delay of

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medical treatment evinces deliberate indifference, the prisoner must show that the delay

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led to further injury. See Hallett, 296 F.3d at 744-45; McGuckin v. Smith, 974 F.2d 1050,

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1060 (9th Cir. 1992) (overruled on other grounds by WMX Technologies, Inc. v. Miller,

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104 F.3d 1133, 1136 (9th Cir. 1997)). Although “[a] prisoner need not show his harm was

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substantial[,] such would [provide] additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096 (citation

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omitted).

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2.

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Here, reading the pleadings liberally, it appears Plaintiff attempts to allege that

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Defendants interfered with his medical treatment—i.e., receiving a bottom bunk

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accommodation as ordered by medical staff. In his First Amended Complaint, plaintiff

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alleges that he told each of the defendants about his medical Chrono. (ECF No. 20 at 3.)

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However, Plaintiff fails to allege whether he suffered any additional harm as a result of not

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having access to a lower bunk for approximately twenty-nine hours.

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conclusory allegations of Defendants exhibiting disregard for his safety are vague and do

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not allege specific injuries he sustained as a result of Defendants’ alleged conduct. For

Discussion

His current

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these reasons, the Complaint lacks sufficiently detailed facts and fails to state a claim for a

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deliberate indifference Eighth Amendment violation.

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a.

Prong One: Serious Medical Need

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Under the first (objective) prong of the deliberate indifference test, Plaintiff must

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properly allege “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, 439 F.3d at 1096.

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Although Plaintiff states he was in “horrific pain” and could not climb onto the top

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bunk, he fails to allege any damages or additional injury caused by Defendants alleged

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denial of a lower bunk. (ECF No. 20 at 3.) Although Plaintiff references being in pain, he

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fails to identify how his discomfort was related to not having a lower bunk. As pled in the

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FAC, the pain he references was associated with the original condition which resulted in

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his leg being placed into a cast. (Id. (“Once discharged, I returned to Building 2 with

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crutches and in horrific pain.”).) Simply asserting Defendants disregarded Plaintiff’s

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safety, without more, is vague and insufficient to meet the objective requirement of

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unnecessary and wanton infliction of pain necessary for an Eighth Amendment violation.

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b.

Prong Two: Awareness of Serious Medical Need

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To satisfy the second (subjective) prong, Plaintiff must properly allege that

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Defendants’ response to his needs was deliberately indifferent. Jett, 439 F.3d at 1096; see

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also Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). Deliberate indifference is shown

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where (1) the official is aware of a serious medical need and fails to adequately respond,

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and (2) this failure causes additional harm. See Jett, 439 F.3d at 1096; Simmons v. Navajo

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Cty., 609 F.3d 1011, 1018 (9th Cir. 2010). “Deliberate indifference is a high legal

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standard.” Simmons, 609 F.3d at 1019. The prison official must be aware of facts from

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which he could make an inference that “a substantial risk of serious harm exists” and the

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official must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the

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Ninth Circuit, “allegations that a prison official has ignored the instructions of a prisoner’s

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treating physician are sufficient to state a claim for deliberate indifference.” Wakefield,
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177 F.3d at 1165. Additionally, where the prisoner is alleging that delay of medical

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treatment evinces deliberate indifference, the prisoner must show that the delay led to

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further injury. See Hallett, 296 F.3d at 744-45; McGuckin, 974 F.2d at 1060.

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In Akhtar v. Mesa, the plaintiff alleged he verbally informed the defendants of his

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lower bunk medical Chrono and showed the Chrono to the defendants. Akhtar, 698 F.3d

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at 1206. The plaintiff’s actions provided notice, making the defendants aware of the

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plaintiff’s serious medical need. Id. at 1213-14. The defendants subsequently ignored the

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medical need they knew about, establishing the plaintiff’s claim for deliberate indifference.

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Id. “Akhtar also alleged that he was harmed as a result of Appellees’ failure to comply

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with his chrono. He alleged that he suffered a broken wrist. He also suffered humiliation

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and embarrassment on several occasions because he urinated in his clothes.” Id. at 1214.

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These allegations of harm, although disputed by the defendants, were sufficient to defeat

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the motion to dismiss. By contrast, Plaintiff here has made no allegations of harm he

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suffered as a result of Defendants’ alleged conduct.

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In Jett v. Penner, the plaintiff injured his thumb while incarcerated and brought a

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claim under the Eighth Amendment alleging that prison doctors and other staff acted with

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deliberate indifference towards his serious medical needs. Jett, 439 F.3d at 1093. After

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repeatedly requesting medical attention through formal and informal processes

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(establishing that the defendants had knowledge of his serious medical need), and after

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receiving allegedly incompetent medical attention from prison doctors, plaintiff’s injury

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worsened and his hand healed improperly. See id. at 1094-95. The court in Jett found that

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“the record [was] replete with evidence showing the delay [in medical treatment] was

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harmful.” Id. at 1098.

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Here, Plaintiff sufficiently alleges that each of Defendants were on notice of his

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Chrono outlining his medical need for a bottom bunk. He also acknowledges that after

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about twenty-nine hours without a bottom bunk, he was granted one. Thus, the Defendants

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did not ignore the instructions of Plaintiff’s treating physician; rather, they delayed

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following the instructions. However, as outlined in the first Report and Recommendation
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regarding the dismissal of this case and the Order adopting that Report and

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Recommendation, Plaintiff is required to allege that this delay lead to additional harm.

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(See ECF No. 15 at 9; ECF No. 19 at 3.) Despite specific notice of deficiencies from the

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Court, Plaintiff has failed to properly allege additional harm suffered as a result of

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Defendants delaying his medical treatment.

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3.

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Under Federal Rule of Civil Procedure 15(a)(2), leave to amend shall be freely given

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when justice so requires. A pro se litigant is entitled to notice of the deficiencies in the

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complaint and an opportunity to amend unless the complaint’s deficiencies cannot be cured

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by amendment. Cato, 70 F.3d at 1106; Noll, 809 F.2d at 1448. “When dismissing a pro se

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complaint for failure to state a claim, district courts need draft only a few sentences

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explaining the deficiencies.” Noll, 809 F.2d at 1449.

First Amended Complaint Should be Dismissed with Prejudice

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Here, Plaintiff has been given the opportunity to amend the deficiencies in his

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original complaint with specific guidance from the Court. (See ECF No. 15 at 9.) With

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regards to his deliberate indifference claim, the court recommended Plaintiff allege

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whether each Defendant knew of his medical condition (the Chrono) and what additional

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harm was caused by the delay in his treatment. (Id.) Although Plaintiff now sufficiently

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alleges that each Defendant knew about his medical Chrono outlining his need for a bottom

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bunk, he has not alleged any further harm that resulted from the Defendants’ delay in

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accommodating the Chrono. Plaintiff alleges Defendants forced him to sleep on the floor

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for one night, but without further details in the alleged facts, this does not rise to the level

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of inflicting “unnecessary and wanton infliction of pain,” which is required for an Eighth

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Amendment violation. See Jett, 439 F.3d at 1096.

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4.

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Plaintiff’s Eighth Amendment claim alleging deliberate indifference to his medical

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needs fails to satisfy either prong of the two-part test. First, Plaintiff does not identify any

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additional harm caused by failure to meet his alleged medical need for a top bunk. Second,

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although Plaintiff alleges that Defendants had knowledge of his medical needs, he fails to

Conclusion

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allege that Defendants’ delayed accommodation of the medical needs lead to further harm.

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Based on the foregoing, the Court should find that Plaintiff has failed to state an Eighth

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Amendment claim based on deliberate indifference. Because the Court has previously

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provided Plaintiff notice of the deficiencies in the Complaint and Plaintiff failed to cure

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the deficiencies with amendment, it is recommended that the First Amended Complaint be

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dismissed with prejudice.

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B.

Defendants’ Entitlement to Qualified Immunity

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The Supreme Court has set forth a two-part analysis for resolving government

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officials’ qualified immunity claims. See Saucier v. Katz, 533 U.S. 194, 201 (2001),

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overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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First, the Court must consider whether the facts “[t]aken in the light most favorable to the

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party asserting the injury . . . show [that] the [defendant’s] conduct violated a constitutional

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right[.]” Id.; see also Scott v. Harris, 550 U.S. 372, 377 (2007). Second, the Court must

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determine whether the right was clearly established at the time of the alleged violation.

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Saucier, 533 U.S. at 201; Scott, 550 U.S. at 377.

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Here, if the Court does not dismiss the FAC with prejudice and grants Plaintiff leave

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to amend, it would be premature at this early stage to recommend granting or denying

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Defendants’ qualified immunity defenses on the merits. Accordingly, this Court

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recommends that this portion of the motion to dismiss be denied without prejudice subject

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to full consideration at a later date on a more developed record—at least until Plaintiff’s

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claims are more concretely stated. Accord Victoria v. City of San Diego, 326 F. Supp. 3d

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1003, 1019 (S.D. Cal. 2018) (finding insufficient basis at pleadings stage to rule on

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qualified immunity claims); Canales v. City of Calexico, No. 17CV695-AJB(JLB), 2017

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U.S. Dist. LEXIS 202644, at *7-9; 2017 WL 6270463, at *3-4 (S.D. Cal. Dec. 8, 2017)

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(same); George v. Uribe, No. 11-CV-70-JLS(RBB), 2012 U.S. Dist. LEXIS 40224, at *20-

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21; 2012 WL 993243, at *7 (S.D. Cal. Mar. 23, 2012) (finding the qualified immunity

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defense premature until, and if, the plaintiff could amend his complaint to successfully

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state a claim); see also Wong v. United States, 373 F.3d 952, 956-57 (9th Cir. 2004) (noting
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qualified immunity may be better left for summary judgment because the notice pleading

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standard may force courts to decide “far-reaching constitutional questions on a nonexistent

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factual record”).

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IV.

CONCLUSION

Based on the foregoing, this Court respectfully RECOMMENDS that Defendants’
motion to dismiss be GRANTED and the Complaint DISMISSED with prejudice.

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This Report and Recommendation is submitted to the United States District Judge

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

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of Civil Procedure 72(b).

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IT IS ORDERED that no later than December 23, 2019, any party to this action may

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file written objections with the Court and serve a copy on all parties. The document shall

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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 the

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Court and served on all parties no later than January 15, 2020. 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.

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DATED: November 13, 2019

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