Wheeler v. Marengo et al

Filing 29

ORDER (1) Adopting Report and Recommendation (Doc. No. 24 ); (2) Granting Defendants' Motoin to Dismiss (Doc. No. 21 ); and (3) Denying Plaintiff's Motion for Leave to Amend (Doc. No. 28 ). Signed by Judge Anthony J. Battaglia on 4/1/2020. (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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KENNETH WHEELER,
Plaintiff,

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

v.
(1) ADOPTING REPORT AND
RECOMMENDATION (Doc. No. 24);

K. MARENGO et al.,
Defendants.

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(2) GRANTING DEFENDANTS’
MOTION TO DISMISS (Doc. No. 21);
AND

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(3) DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND (Doc. No. 28)

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On April 29, 2019, Plaintiff Kenneth Wheeler (“Plaintiff”), a state prisoner

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proceeding pro se, filed a First Amended Complaint (“FAC”) with this Court alleging

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prison officials violated his Eighth Amendment rights pursuant to 42 U.S.C. § 1983. (FAC,

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Doc. No. 20.) Before the Court are Defendants K. Marengo, M. Dominguez, and A. Lay’s

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(“Defendants”) motion to dismiss Plaintiff’s FAC. (Doc. No. 21.) Magistrate Judge

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William V. Gallo filed a Report and Recommendation (“R&R”) recommending the Court

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grant Defendants’ motion to dismiss, and dismiss the FAC with prejudice. (Doc. No. 24.)

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Plaintiff filed a motion for leave to amend. (Doc. No. 28.) For the reasons set forth below,

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the Court: (1) ADOPTS the R&R, (2) GRANTS Defendants’ motion to dismiss, and (3)
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DENIES Plaintiff’s motion for leave to amend.

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I.

BACKGROUND

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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. Plaintiff claims on October 24, 2016, he suffered a

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serious injury to his knee, was transported by ambulance to RJD’s medical facilities, and

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his leg was placed in a cast. (FAC at 3.) While at the medical facility, Plaintiff received a

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Comprehensive Accommodation Chrono (“Chrono”) requesting a lower-level bunk bed.

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(Id. at 9.) When he returned to his housing unit with crutches and “in horrific pain,”

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Plaintiff alleges he informed Defendant Marengo of the Chrono. Defendant Marengo told

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Plaintiff a lower bunk bed would be provided, but Defendant Marengo’s shift ended

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without Plaintiff receiving the lower bunk accommodation. (Id.) Additionally, Plaintiff

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contends Defendant Marengo failed to inform subsequent officers of the lower bunk

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request. (Id.)

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Plaintiff alleges he laid back on the floor because he could not climb to the top bunk

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and the bottom bunk was occupied by another inmate. (Id.) Defendant Dominguez then

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began the shift following Defendant Marengo. (Id.) Plaintiff states when Defendant

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Dominguez asked why Plaintiff was lying on the floor of his cell, Plaintiff told him he

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could not mount the top bunk, he asked for a bottom bunk, and he informed Defendant

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Dominguez of his lower bunk Chrono. (Id.) However, Dominguez told Plaintiff nothing

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could be done until the next day. (Id.)

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The next day, Defendant Lay began the shift following Defendant Dominguez’s

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shift. (Id.) Plaintiff alleges he explained to Defendant Lay he had a lower bunk Chrono,

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which could also be found on the computer system. (Id.) Plaintiff alleges 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. (Id.) Plaintiff contends 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. (Id.)

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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 asserts § 1983 violations of the Eighth

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

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needs.

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II.

PROCEDURAL HISTORY

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On February 15, 2018, Plaintiff filed his first Complaint. (Doc. No. 1.) On June 22,

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2018, Defendants moved to dismiss the Complaint, and the Magistrate Judge issued an

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R&R recommending the Court grant in part Defendants’ motion to dismiss and to dismiss

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the Complaint with leave to amend. (Doc. Nos. 11, 15.) The Magistrate Judge concluded

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Plaintiff failed to allege any damages or additional injury caused by Defendants’ alleged

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denial of a lower bunk. (Doc. No. 15 at 7–8.) The Magistrate Judge also determined

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Plaintiff failed to specify whether Defendants were aware of the lower bunk requirement,

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and if aware, how each Defendant was provided notice. (Id.) On March 22, 2019, the Court

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adopted the R&R in its entirety, and granted Plaintiff leave to amend his Complaint. (Doc.

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No. 19.)

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On April 29, 2019, Plaintiff filed his FAC. (FAC, Doc. No. 20.) Defendants filed a

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motion to dismiss for failure to state a claim. (Doc. No. 21.) On November 13, 2019, the

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Magistrate Judge issued another R&R recommending dismissal of the action, but this time,

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with prejudice. (Doc. No. 24.) On December 23, 2019, Plaintiff moved for an extension of

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time to respond to the R&R, which was granted by the Court. (Doc. No. 25–26.) On

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February 12, 2020, Plaintiff filed a motion to dismiss his FAC without prejudice, and with

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leave to amend his FAC. (Doc. No. 28.)

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III.

LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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judge’s duties in connection with a magistrate judge’s report and recommendation. The

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district judge must “make a de novo determination of those portions of the report . . . to

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which objection is made[,]” and “may accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);

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United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of

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timely objection(s), the court “need only satisfy itself that there is no clear error on the face

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of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory

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committee’s note to 1983 amendment; United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003).

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IV.

DISCUSSION

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A.

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As a preliminary matter, the Magistrate Judge’s R&R recommends dismissal of this

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entire action with prejudice. (Doc. No. 24.) Instead of filing objections to the Magistrate

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Judge’s R&R despite requesting an extension of time to do so, Plaintiff filed a motion

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styled as a “motion to dismiss without prejudice with leave to amend First Amended

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Complaint.” (Doc. No. 28.) Plaintiff’s motion only seeks leave to amend and does not

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contain objections to any other part of the R&R. Thus, liberally interpreting Plaintiff’s

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motion, and with consideration to the pending motion to dismiss and R&R, the Court will

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construe Plaintiff’s motion as an objection to the R&R to the extent the R&R recommends

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dismissal with prejudice. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

Plaintiff’s Motion for Leave to Amend

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B.

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Next, the Court turns to whether Plaintiff has adequately pleaded an Eighth

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Amendment claim. To allege an Eighth Amendment claim that prison officials failed to

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attend to serious medical needs, a plaintiff must show that the lack of response exhibits

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“deliberate indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The two-

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part test for “deliberate indifference” requires the plaintiff to show: (1) “a ‘serious medical

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need’ by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the

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defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096.

Plaintiff’s Eighth Amendment Claim

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Firstly, the Magistrate Judge correctly concluded Plaintiff failed to satisfy the first

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prong because “[a]lthough Plaintiff references being in pain, he fails to identify how his
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discomfort was related to not having a lower bunk.” (Doc. No. 24 at 7.) Specifically, the

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pain Plaintiff referenced in his FAC was associated with the original condition which

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resulted in his leg being placed into a cast, and not pain as a result of alleged

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unconstitutional actions taken by Defendants. (Id.) Plaintiff has not provided any facts

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showing Defendants’ alleged deliberate indifference resulted in further significant injury

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or unnecessary and wanton infliction of pain. (Id. at 8.)

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Secondly, the Magistrate Judge also correctly determined Plaintiff failed to satisfy

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the second prong. (Id. at 7.) Although Plaintiff alleged each of Defendants were on notice

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of his Chrono outlining his medical need for a bottom bunk, Plaintiff was ultimately

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granted a bottom bunk after twenty-nine hours. (Id. at 8.) Thus, Defendants did not ignore

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the instructions of Plaintiff’s treating physician; rather, they merely slightly delayed

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following the instructions. (Id.); see Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir.

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1988), vacated on other grounds, 493 U.S. 801 (1989) (holding that mattress deprivation

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“for only one night [was] insufficient to state an eighth amendment violation”).

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Seeing no objections from Plaintiff to these determinations, the Court holds that the

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Magistrate Judge’s conclusion is well-reasoned, thorough, and containing no clear error.

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Plaintiff has failed to adequately plead an Eighth Amendment violation.

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C.

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Lastly, the Magistrate Judge recommends dismissal of this action with prejudice.

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(Doc. No. 24 at 9.) The Magistrate Judge pointed out Plaintiff has already been afforded

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an opportunity to amend the deficiencies in the original Complaint with specific

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instructions from the Court. (Id.) Plaintiff, on the other hand, urges that the Court provide

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him with an additional opportunity to amend his Complaint. (Doc. No. 28.) Plaintiff

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explains he was a patient in the Enhanced Outpatient (EOP) building, and was administered

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medication to help treat his mental illness. (Id. at 2.) Plaintiff is now on a lower dosage of

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treatment, “mentally stabilized,” and can now adequately recall events with due diligence.

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(Id.)

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Leave to Amend

“A district court acts within its discretion to deny leave to amend when amendment
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would be futile, when it would cause undue prejudice to the defendant, or when it is sought

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in bad faith.” Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000).

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Although Plaintiff now sufficiently alleges that each Defendant knew about his medical

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Chrono outlining his need for a bottom bunk, he has not alleged any further harm that

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resulted from the Defendants’ delay in accommodating the Chrono. Neither has Plaintiff

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adequately alleged Defendants’ actions were deliberately indifferent because he was

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eventually provided a bottom bunk only after a slight delay. Plaintiff complains Defendants

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forced him to sleep on the floor for one night, but without additional injury, this does not

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rise to the level of inflicting “unnecessary and wanton infliction of pain” required for an

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

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Furthermore, even though Plaintiff has already been provided with an opportunity

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to amend, Plaintiff still does not clarify how he intends to cure the deficiencies in his

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Complaint. He states he can better structure his arguments to avoid pleading legal

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conclusions, but Plaintiff does not explain what additional facts he now recalls that will

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save his claim. Therefore, in light of Plaintiff’s failure to demonstrate significant injury

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from having to sleep on the floor for one night, or deliberate indifference, the Court holds

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that any amendment would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th

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Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”).

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Accordingly, the Court OVERRULES Plaintiff’s objection, and DENIES Plaintiff’s

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motion for leave to amend his First Amended Complaint.

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V.

CONCLUSION

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Based on the foregoing, the Court (1) ADOPTS the Magistrate Judge’s R&R, (2)

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GRANTS Defendants’ motion to dismiss, (3) DENIES Plaintiff’s motion for leave to

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amend, and (4) DISMISSES Plaintiff’s FAC WITHOUT LEAVE TO AMEND. The

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Clerk of Court is INSTRUCTED to close the case.

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IT IS SO ORDERED.

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Dated: April 1, 2020

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