Williams v. Ortega et al

Filing 29

REPORT AND RECOMMENDATION Re: Defendants' Motion to Dismiss (ECF No. 26 ). It is recommended that Defendants' Motions to Dismiss be granted. Objections to R&R due by 9/23/2019. Replies due by 9/30/2019. Signed by Magistrate Judge Mitchell D. Dembin on 9/6/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LANCE WILLIAMS,

Case No.: 18-cv-00547-LAB-MDD
Plaintiff,

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v.

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O. ORTEGA, ET AL.,
Defendants.

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: DEFENDANTS’ MOTION TO
DISMISS
[ECF No. 26]

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This Report and Recommendation is submitted to United States Judge

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Larry Alan Burns pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule

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72.1(c) of the United States District Court for the Southern District of

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California.

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For the reasons set forth herein, it is RECOMMENDED that
Defendants’ Motions to Dismiss be GRANTED.
I. PROCEDURAL HISTORY

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Plaintiff Lance Williams (“Plaintiff”) is a state prisoner at Richard J.

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Donovan Correctional Facility (“Donovan”) proceeding pro se and in forma

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pauperis. (ECF No. 26 at 1).1 On March 15, 2018, Plaintiff filed a complaint

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pursuant to 42 U.S.C. § 1983 (“Complaint”). (ECF No. 1). The Complaint

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sets forth various claims against officer J. Melgoza (“Defendant Melgoza”),

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psychiatric technician/nurse M. Kimani (“Defendant Kimani”), and others.

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Plaintiff alleges that Defendants Melgoza and Kimani violated his Eighth

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Amendment rights by acting with deliberate indifference to his serious

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medical needs. (ECF No. 1 at 8, 11-12). Plaintiff further alleges that

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Defendant Kimani falsified medical records in violation of California Penal

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Code sections 132 and 134. (Id. at 2).

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On June 28, 2019, Defendants Melgoza and Kimani filed a Motion to

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Dismiss the claims against them. (ECF No. 26). Defendants contend that

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Plaintiff failed to allege that Defendants Melgoza and Kimani were

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deliberately indifferent to Plaintiff’s medical needs. (ECF No. 26-1 at 3-4).

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Defendants further contend that California Penal Code sections 132 and 134

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do not offer redress under 42 U.S.C. § 1983. (Id. at 5-6).
On July 14, 2019, Plaintiff filed an Opposition to Defendants’ Motion to

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Dismiss (“Opposition”). (ECF No. 28). In the Opposition, Plaintiff alleges

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additional facts that were not alleged in the Complaint. In ruling on a

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motion to dismiss, the court may not consider facts alleged for the first time

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in opposition to a motion to dismiss. See Cervantes v. City of San Diego, 5

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F.3d 1273, 1274 (9th Cir. 1993). As such, the Court’s analysis is limited to

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the facts alleged in the Complaint.
II. BACKGROUND FACTS

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The facts as presented are taken from Plaintiff’s Complaint and are not

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All pincite page references refer to the automatically generated ECF page
number, not the page number in the original document.
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to be construed as findings of fact by the Court. This discussion is limited to

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the allegations regarding Defendants Melgoza and Kimani.

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Plaintiff’s claims arise from a series of events on March 1, 2018. (ECF

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No. 1 at 4). On March 1, 2018, Plaintiff walked to the sergeant’s office and

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crossed paths with officer Ortega (“Defendant Ortega”). (Id.). Defendant

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Ortega told Plaintiff it was “yard recall” and Plaintiff must return to his cell.

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(Id.). Plaintiff told Defendant Ortega that Plaintiff was going to see the

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sergeant about “his court call,” and continued walking. (Id.). The

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conversation led to an altercation where Defendant Ortega pushed Plaintiff

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into the wall. (Id. at 5). The altercation escalated and ended with Defendant

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Ortega handcuffing Plaintiff. (Id.). Plaintiff alleges that Defendant Ortega

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pulled the handcuffs “extremely tight.” (Id.). Defendant Ortega took

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Plaintiff to the P.S.U. mental health building and placed Plaintiff in the

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“cage,” where Plaintiff remained for one hour. (Id.). Plaintiff requested

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medical throughout the hour he spent in the cage. (Id. at 6).

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After Plaintiff was released from the cage, Plaintiff returned to his

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building. (Id. at 8). Plaintiff asked Defendant Melgoza to call medical to

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treat his injuries sustained during the altercation with Defendant Ortega.

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(Id.). Defendant Melgoza said, “I’m not calling anybody go tell the Seargent.”

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[sic] (Id.). Plaintiff requested Defendant Melgoza allow Plaintiff out of the

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building to speak with the sergeant. (Id.). Defendant Melgoza allowed

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Plaintiff out of the building. (Id.). Before this conversation with Defendant

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Melgoza, Plaintiff “went to numerous inmates cells” [sic] to show them his

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injuries. (Id.).

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In his examination following this incident, Plaintiff showed Defendant

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Kimani “fresh dried blood” on his wrist, a cut in his nose [sic], and fresh blood

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on his shirt. (Id. at 11). Plaintiff informed Defendant Kimani of “throbbing
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pain” in his body and that he could not move his ring finger. (Id.). Defendant

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Kimani did not perform a mental health assessment or check Plaintiff’s body

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for injuries or bruising. (Id. at 12). Plaintiff attached to the Complaint a

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copy of the medical report Defendant Kimani prepared following the

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examination. (Id. at 30). The report indicates that Plaintiff had scabs on his

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wrists. (Id.). The report indicates that Defendant Kimani examined Plaintiff

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at 12:40 and that a registered nurse was notified at 13:00. (Id.). Plaintiff

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alleges Defendant Kimani falsified this report. (Id. at 12).
III. LEGAL STANDARD

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A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency

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of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under

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Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and

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plain statement of the claim showing that the pleader is entitled to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted).

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The pleader must provide the Court with “more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do

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not suffice.” Id. The court must assume the truth of the facts which are

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presented and construe all inferences from them in the light most favorable

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to the non-moving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.

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2002).

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A pro se pleading is construed liberally on a defendant’s motion to

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dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002) (citing Ortez v. Washington Cty., 88 F.3d 804, 807 (9th Cir.

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1996)). The pro se pleader must still set out facts in his complaint that bring

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his claims “across the line from conceivable to plausible.” Twombly, 550 U.S.
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at 570.

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A pro se litigant is entitled to notice of deficiencies in the complaint and

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

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by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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Thus, the court is not required to accept as true allegations that are

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“supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

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Furthermore, the court “may not supply essential elements of the claim that

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were not initially pled.” Ivey v. Bd. of Regents of the University of Alaska, 673

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F.2d 266, 268 (9th Cir. 1982).
IV. DISCUSSION

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A. Deliberate Indifference

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Plaintiff alleges that Defendants Melgoza and Kimani violated his

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Eighth Amendment right to be free from cruel and unusual punishment

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when the defendants delayed treatment and denied Plaintiff access to

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treatment. (ECF No. 1 at 8, 11-12). Defendants contend that Plaintiff’s

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claim fails as a matter of law because he has not pled facts sufficient to show

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that either Defendant acted with deliberate indifference to Plaintiff’s serious

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medical needs. (ECF No. 26-1 at 4-5).

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The Eighth Amendment is violated when prison officials demonstrate

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“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429

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U.S. 97, 104 (1976); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). In

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order to state a claim for deliberate indifference under the Eighth

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Amendment, an inmate must plead facts sufficient to show both an objective

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and a subjective requirement. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th

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Cir. 2014).

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First, to satisfy the objective prong, the inmate must show that he
suffered a deprivation or injury that was “objectively, sufficiently serious.”
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Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted). A

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serious medical need is shown if a failure to provide adequate treatment

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results in wanton and unnecessary infliction of pain. McGuckin v. Smith, 974

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F.2d 1050, 1059 (9th Cir. 1992).

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Next, to satisfy the subjective prong, the inmate must demonstrate that

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“the official [knew] of and disregard[ed] an excessive risk to inmate health or

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safety…” Farmer, 511 U.S. at 837. The official must have been aware of

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facts or factual circumstances that would allow him to draw the inference

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that a substantial risk of serious harm to the inmate’s health and safety

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exists, and he must also draw that inference. Id.
It is not enough that the plaintiff merely disagree with the course of

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treatment provided. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

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A difference in medical opinion is “insufficient, as a matter of law, to

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establish deliberate indifference.” Id. (citing Jackson v. McIntosh, 90 F.3d

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330, 332 (9th Cir. 1996)).

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1. Defendant Melgoza

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Plaintiff alleges that Defendant Melgoza was deliberately indifferent to

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Plaintiff’s serious medical needs. (ECF No. 1 at 3).

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Plaintiff asked Defendant Melgoza to call medical. (ECF 1 at 8).

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Defendant Melgoza said, “I’m not calling anybody go tell the Seargent.” [sic]

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(Id.). Plaintiff requested Defendant Melgoza allow Plaintiff out of the

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building to speak with the sergeant. (Id.). Defendant Melgoza allowed

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Plaintiff out of the building. (Id.). Before this conversation with Defendant

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Melgoza, Plaintiff “went to numerous inmates cells” [sic] to show them his

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injuries. (Id.).

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Plaintiff fails to provide any documentation or information which

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objectively shows that a serious injury was present. Plaintiff requested and
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received medical care. By allowing Plaintiff out of the building to speak with

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the sergeant regarding Plaintiff’s injuries, Defendant Melgoza did not

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disregard Plaintiff’s health, as Plaintiff so claims. Further, prior to

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requesting medical care, Plaintiff went to “numerous inmates” to show them

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his injuries. The time Plaintiff spent showing his injuries to other inmates

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before seeking medical care suggests Plaintiff’s injuries were not serious

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medical needs. Plaintiff’s unsupported claim of deliberate indifference to a

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serious medical need is not sufficient to constitute a constitutional violation.

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Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).

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2. Defendant Kimani

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Plaintiff alleges that Defendant Kimani was deliberately indifferent to

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Plaintiff’s serious medical needs because Defendant Kimani failed to call

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medical or take Plaintiff to medical. (ECF No. 1 at 11). Plaintiff further

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alleges that Defendant Kimani falsified the March 1, 2018 medical report, in

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violation of California Penal Code sections 132 and 134. (Id. at 2).

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Plaintiff asserts that during the examination, he showed Defendant

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Kimani “fresh dried blood” on his wrist, a cut in his nose [sic], and fresh blood

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on his shirt. (Id. at 11). Plaintiff attached to the Complaint the medical

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report Defendant Kimani prepared following the examination. (Id. at 30).

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The report indicates that Plaintiff had scabs on his wrists. (Id.). The report

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also indicates that Defendant Kimani examined Plaintiff at 12:20 and that a

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registered nurse was notified at 13:00. (Id.).

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There is no objective showing of a serious medical need and no showing

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of a deprivation of treatment. Plaintiff asked for and received medical care.

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Defendant Kimani documented the examination in a medical report. The

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medical report indicates that Plaintiff had scabs on his wrist and that a

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registered nurse was notified. Plaintiff has failed to demonstrate that
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Defendant Kimani knew of and disregarded an excessive risk to Plaintiff’s

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health. No inference can be drawn in favor of a substantial risk of serious

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harm. Plaintiff’s disagreement with Defendant Kimani’s treatment is not

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enough to demonstrate deliberate indifference to a serious medical need.

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Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). The facts as pled by

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Plaintiff lack detail sufficient to overcome the high burden of demonstrating

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deliberate indifference.
Accordingly, the Court RECOMMENDS that Defendants’ Motion to

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Dismiss Plaintiff’s Eighth Amendment claims for Deliberate Indifference be
GRANTED as to Defendants Melgoza and Kimani.

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B. False Report

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Plaintiff alleges that Defendant Kimani falsified the March 1, 2018

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medical report in violation of California Penal Code sections 132 and 134.

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(ECF 1 at 2). Defendants argue that because these sections do not give rise

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to civil liability, these claims should be dismissed. (ECF 26-1 at 6).
California Penal Code section 132 (“Section 132”) makes it a felony to

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offer in evidence a record that the person knows has been forged. Cal. Penal

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Code § 132 (West 2019). California Penal Code section 134 (“Section 134”)

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makes it a felony to prepare a false record with the intent to produce it for

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any fraudulent purpose in a trial or other proceeding. Cal. Penal Code § 132

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(West 2019). Criminal statutes do not create civil liability. See Allen v. Gold

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Country Casino, 464 F.3d 1044, 1048 (2006). As criminal statutes, neither

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Section 132 nor Section 134 create civil liability.

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Accordingly, the Court RECOMMENDS that Defendants’ Motion to

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Dismiss Plaintiff’s claim for falsifying medical records be GRANTED as to

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Defendant Kimani.

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V. CONCLUSION

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Based on the foregoing, it is RECOMMENDED that:

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Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment claims for

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Deliberate Indifference be GRANTED as to Defendants Melgoza and Kimani

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and DISMISSED WITHOUT PREJUDICE.

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Defendants’ Motion to Dismiss Plaintiff’s claim for falsifying medical

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records be GRANTED as to Defendant Kimani and DISMISSED WITH

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PREJUDICE to the extent Plaintiff’s falsifying medical records claim

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against Defendant Kimani is based upon California Penal Code Section 132

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and Section 134.
This Report and Recommendation will be submitted to the United

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States District Judge assigned to this case, pursuant to the provisions of 28

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U.S.C. § 636(b)(1). Any party may file written objections with the court and

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serve a copy on all parties by September 23, 2019. The document shall be

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captioned “Objections to Report and Recommendation.” Any reply to the

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objections shall be served and filed by September 30, 2019.

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The parties are advised that failure to file objections within the

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

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court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated: September 6, 2019

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