Stewart v. Fu

[8] 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA [11] 12 CHRISTOPHER STEWART, No. 2:19-cv-00286-JAM-CKD 13 Plaintiff, 14 v. ORDER GRANTING DEFENDANTS DIXON AND STARR’S MOTION 15 LAW FU, ASSOCIATE WARDEN MELBA S. TO DISMISS STARR, PAROLE OFFICER KEN DIXON, et 16 al., 17 Defendants. [18] Christopher Stewart (“Plaintiff”) sued Associate Warden [19] Melba S. Starr and Parole Officer Ken Dixon (collectively, [20] “Defendants”), as well as a host of Sacramento County employees, [21] alleging excessive force, deliberate indifference to medical [22] needs, and deprivation of due process in violation of his Fourth, [23] Eighth, and Fourteenth Amendment rights when he was in the [24] Sacramento County Jail and, later, the California Department of [25] Corrections and Rehabilitation Deuel Vocational Institute [26] (“DVI”). See Second Am. Compl. (“SAC”), ECF No. 32. Plaintiff [27] also alleges a handful of state law claims. Id. [28] 1 Defendants move to dismiss: (1) Plaintiff’s first cause of 2 action against Dixon for battery and excessive force; and 3 (2) Plaintiff’s sixth cause of action against Starr for 4 deliberate indifference to a serious medical need. See Mot. to 5 Dismiss (“Mot.”), ECF No. 37. Doing so would dismiss both Dixon 6 and Starr as defendants. Defendants argue that each of the 7 claims against them fail to state a claim upon which relief can 8 be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). 9 Id. Plaintiff opposes the motion. See Opp’n, ECF No. 41. 10 For the reasons set forth below, the Court GRANTS 11 Defendants’ Motion to Dismiss.1 [12] 13 I. FACTUAL BACKGROUND 14 On November 4, 2017, Plaintiff was involved in two 15 motorcycle accidents. SAC ¶¶ 8–10. He suffered several serious 16 injuries, including a broken arm, broken leg, broken knee, and 17 broken hip. SAC ¶ 11. After the second accident, Plaintiff 18 received medical treatment, which included the insertion of 19 plates to hold his fractures in place. SAC ¶ 18. Plaintiff was 20 still undergoing treatment and expected future surgeries when he 21 was arrested by Parole Officer Dixon on February 9, 2018. SAC 22 ¶¶ 18, 20. However, the Sacramento County Jail refused to accept 23 Plaintiff that day, citing medical reasons. SAC ¶ 21. 24 Plaintiff was arrested again on February 23, 2018. SAC 25 ¶ 24. This time the Sacramento County Jail accepted Plaintiff [26] 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for March 23, 2021. 1 and placed him in a medical ward. SAC ¶¶ 24, 26. During each 2 arrest, Plaintiff asked Dixon not to handcuff him behind his back 3 because of his injuries. SAC ¶¶ 22, 25. Dixon ignored 4 Plaintiff’s requests. Id. Eventually, Plaintiff was transferred 5 to DVI in San Joaquin County. SAC ¶ 47. There, Plaintiff was 6 assigned to Dr. Fu for medical care. SAC ¶ 47. Dr. Fu treated 7 Plaintiff from April 2, 2018, until August 9, 2018. SAC ¶¶ 50– 8 63, 71-72. Plaintiff alleges that much of Dr. Fu’s treatment was 9 inadequate. Id. 10 On June 18, 2018, Plaintiff appeared in front of the 11 classification committee, which was headed by Associate Warden 12 Starr. SAC ¶ 64. The committee denied Plaintiff “Extended Stay 13 Privileges” and a transfer to a medical facility. Id. The 14 committee report noted that Plaintiff had serious medical needs 15 that might mandate specialized transfer considerations. SAC 16 ¶ 65. The report also noted that the specialized transfer 17 considerations were not dispositive and, ultimately, decided not 18 to transfer Plaintiff because CDCR staff had not completed 19 processing. Id. Specifically, CDCR staff had neither 20 interviewed Plaintiff nor conducted “casework review.” Id. 21 Plaintiff appealed the decision on June 29, 2018. SAC ¶ 67. 22 On July 16, 2018, Plaintiff filed a disability accommodation 23 request. SAC ¶ 68. Starr responded a few days later, indicating 24 that Plaintiff had not raised any disability-related access 25 issues that might cause injury or serious harm. Id. Plaintiff 26 also appealed this decision. SAC ¶ 69. CDCR dismissed 27 Plaintiff’s appeal and submitted his complaint to the Health Care 28 Grievance Coordinator. SAC ¶ 70. Plaintiff never heard from the 1 coordinator. Id. 2 Plaintiff alleges that his medical conditions have worsened 3 as a direct result of his manner of incarceration and the 4 deliberate indifference to his medical needs. SAC ¶¶ 73–76. For 5 instance, the plate in Plaintiff’s hip disconnected and the bone 6 in his wrist died. SAC ¶¶ 74–75. Plaintiff’s current medical 7 providers have informed him that the delay in treatment caused by 8 his time in the Sacramento County Jail and DVI caused 9 irreversible and permanent injury. SAC ¶¶ 78, 80. [10] 11 II. OPINION 12 A. Legal Standard 13 Federal Rule of Civil Procedure 8(a)(2) requires “a short 14 and plain statement of the claim showing that the pleader is 15 entitled to relief.” A suit must be dismissed if the plaintiff 16 fails to “state a claim upon which relief can be granted.” Fed. 17 R. Civ. Proc. 12(b)(6). To defeat a Rule 12(b)(6) motion to 18 dismiss, a plaintiff must “plead enough facts to state a claim 19 to relief that is plausible on its face.” Bell Atlantic Corp. 20 v. Twombly, 550 U.S. 544, 570 (2007). 21 B. Analysis 22 1. Parole Officer Dixon 23 Plaintiff’s first cause of action alleges a claim of 24 battery and a claim of excessive force pursuant to 42 U.S.C. 25 § 1983. See SAC at 12–15. The two claims are interrelated 26 because a plaintiff “must prove unreasonable force as an element 27 of [battery].” Edson v. City of Anaheim, 63 Cal.App.4th 1269 , 28 1272 (1998). The reasonableness of the force is generally 1 assessed by carefully weighing “the nature and quality of the 2 intrusion on the individual’s Fourth Amendment interests against 3 the countervailing governmental interests at stake.” Graham v. 4 Connor, 490 U.S. 386, 396 (1989) (internal quotation marks and 5 citation omitted). It is an objective inquiry that pays 6 “careful attention to the facts and circumstances of each 7 particular case.” Id. If an officer carries out a seizure that 8 is reasonable, considering all the relevant circumstances, there 9 is no valid excessive force claim. Cnty. of L.A., Cal. v. 10 Mendez, 137 S. Ct. 1539, 1547 (2017). Nor is there a valid 11 battery claim. See Edson, 63 Cal.App.4th at 1273 (“[B]y 12 definition, a prima facie battery is not established unless and 13 until plaintiff proves unreasonable force was used.”). 14 Thus, the Court’s inquiry begins and ends with its 15 reasonableness assessment. Plaintiff does not contest the 16 lawfulness of either the February 9, 2018, arrest or the 17 February 23, 2018, arrest. Opp’n at 3. Plaintiff similarly 18 does not dispute that Dixon had a right to touch him in 19 effectuating the arrests and that handcuffs are used in the 20 ordinary course of lawful arrests. Id. At issue is whether 21 handcuffing Plaintiff behind his back was unreasonable. See SAC 22 ¶¶ 22, 25; Opp’n at 3–4. However, Plaintiff fails to cite to 23 any caselaw in support of the argument that doing so might 24 constitute an excessive use of force. Plaintiff merely argues 25 that the action was unreasonable because he asked Dixon not to 26 handcuff him from behind because of his injuries. This is 27 insufficient. Plaintiff does not allege that, once handcuffed, 28 he told Dixon that he was, in fact, in pain. And Plaintiff’s 1 allegation that being handcuffed by Dixon from behind caused 2 “damage to the surgical repairs” is vague and unsupported by any 3 specific facts or competent evidence. SAC ¶¶ 22, 25. Plaintiff 4 only details injuries caused by the Sacramento County Jail 5 deputies when they handcuffed him and transported him to and 6 from court. See SAC ¶ 40. Those injuries are separate and 7 apart from any caused by Dixon. 8 Dixon’s conduct need not have been the “least intrusive 9 means,” but must only have been “within that range of 10 conduct . . . identif[ied] as reasonable.” Billington v. Smith, [11] 292 F.3d 1177, 1188-89 (9th Cir. 2002). Handcuffing a person 12 behind their back is routine and possibly even required. The 13 action was, therefore, within the range of reasonable conduct. 14 The facts alleged in the SAC do not support Plaintiff’s claim 15 that Dixon used a degree of force or method of handcuffing 16 beyond what was required. Accordingly, Plaintiff’s first cause 17 of action for battery and excessive force against Parole Officer 18 Dixon is DISMISSED. 19 2. Associate Warden Starr 20 Plaintiff’s sixth cause of action alleges deliberate 21 indifference to his medical needs. See SAC at 31–33. An 22 incarcerated person may state a § 1983 violation of the Eighth 23 Amendment by correctional employees if he alleges “acts or 24 omissions sufficiently harmful to evidence deliberate 25 indifference to [his] serious medical needs.” Estelle v. 26 Gamble, 429 U.S. 97, 106 (1976). A determination of deliberate 27 indifference involves examining two elements: “the seriousness 28 of the prisoner’s medical need and the nature of the defendant’s 1 response to that need.” McGuckin v. Smith, 974 F.2d 1050 , 1059 2 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. 3 v. Miller, 104 F.3d 1133 (9th Cir. 1997). 4 For a defendant’s response to a serious medical need to 5 rise to the level of deliberate indifference, there must be a 6 purposeful act or failure to act on the part of the defendant. 7 Id. at 1061. For instance, “indifference is manifested by 8 prison doctors in their response to the prisoner’s needs or by 9 prison guards intentionally denying or delaying access to 10 medical care or intentionally interfering with the treatment 11 prescribed.” Gamble, 429 U.S. at 104–05. “An accident, 12 although it may produce added anguish, is not on that basis 13 alone to be characterized as wanton infliction of unnecessary 14 pain” sufficient to demonstrate deliberate indifference, “nor 15 does an inadvertent failure to provide adequate medical care” by 16 itself create a cause of action under § 1983. Id. at 105. 17 “Mere negligence in diagnosing or treating a medical condition, 18 without more, does not violate a prisoner’s Eighth Amendment 19 rights.” Hutchinson v. United States, 838 F.2d 390, 394 (9th 20 Cir. 1988). 21 As an initial matter, the seriousness of Plaintiff’s injury 22 is not in dispute. Upon his transfer to DVI, Plaintiff was 23 referred to Dr. Fu for medical care and it was quickly 24 determined that he needed surgery to correct a loose plate in 25 his wrist. SAC ¶¶ 47, 51–52. What is in dispute is whether 26 Associate Warden Starr’s subsequent actions amounted to 27 deliberate indifference. Plaintiff’s specific allegations 28 against Starr are that Starr, as the head of the classification 1 committee, failed to properly vet Plaintiff’s case and 2 ultimately denied the classification change. SAC ¶ 64. 3 Plaintiff requested the transfer to another facility because he 4 felt that DVI could not meet his medical needs. See SAC ¶¶ 61, 5 67, 69. 6 These facts do not support the allegation that Starr 7 intentionally denied or delayed Plaintiff’s access to medical 8 care or intentionally interfered with the treatment prescribed 9 by the medical staff at DVI. See Gamble, 429 U.S. at 104–05. 10 Instead, Starr denied Plaintiff’s request to be transferred to 11 another facility. SAC ¶¶ 64, 68. This does not constitute 12 deliberate indifference to an incarcerated person’s serious 13 medical needs. An incarcerated person does have a right to the 14 prison facility of his choice. Williams v. Wood, 223 F.App’x 15 670, 671 (9th Cir. 2007) (citing Olim v. Wakinekona, 461 U.S. 16 238, 245 (1983)). And a denial of a grievance is not, in and of 17 itself, a constitutional violation. Mann v. Adams, 855 F.2d 18 639, 640 (9th Cir. 1998) (“There is no legitimate claim of 19 entitlement to a grievance procedure.”). Moreover, the SAC 20 describes the medical treatment Plaintiff received while at the 21 facility. See SAC ¶¶ 50, 52–53, 55, 57, 59–60. It presents no 22 facts that suggest Starr intentionally interfered with or 23 prevented that treatment. 24 Plaintiff’s SAC does not include sufficient factual matter 25 to state a claim of deliberate indifference to medical needs 26 against Starr that is plausible on its face. See Ashcroft v. 27 Iqbal, 556 U.S. 662, 678 (2009). Accordingly, Plaintiff’s sixth 28 cause of action against Assistant Warden Starr is DISMISSED. 1 C. Leave to Amend 2 Under Fed. R. Civ. Proc. 15(a), leave to amend “shall be 3 freely given when justice so requires.” The Ninth Circuit has 4 “repeatedly stressed” that the Court must adhere to “the 5 underlying purpose of Rule 15 . . . to facilitate decision on 6 the merits, rather than on the pleadings or technicalities.” 7 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 8 Accordingly, leave to amend should be granted, “unless [the 9 Court] determines that a pleading could not possibly be cured by 10 the allegation of other facts.” Id. (citing Doe v. U.S., 58 11 F.3d 494, 497 (9th Cir. 1995)). 12 Plaintiff has requested leave to amend. Opp’n at 4. 13 However, the Court finds that amendment would be futile. 14 Plaintiff has had three opportunities to file sufficiently pled 15 claims against these two Defendants. See Compl., ECF No. 1; 16 First Am. Compl., ECF No. 11; SAC, ECF No.32. Moreover, 17 Plaintiff, in his opposition, had the opportunity to set forth 18 additional facts in support of the specific causes of action 19 challenged by Defendants here, but failed to add anything to 20 suggest they can be cured by amendment. 21 Accordingly, the Court DENIES Plaintiff’s request for leave 22 to amend the SAC. [23] 24 III. ORDER 25 For the reasons set forth above, the Court GRANTS WITHOUT 26 LEAVE TO AMEND Defendants’ Motion to Dismiss. The Court: 27 1. DISMISSES as defendants Parole Officer Ken Dixon and 28 Associate Warden Melba S. Starr; 1 2. GRANTS Defendants’ Motion to Dismiss Plaintiff’s first 2 cause of action against Parole Officer Ken Dixon for battery and 3 excessive force; and 4 3, GRANTS Defendants’ Motion to Dismiss Plaintiff’s sixth 5 cause of action for deliberate indifference to a serious medical 6 need insofar as it is alleged against Assistant Warden Melba S. 7 Starr. 8 IT IS SO ORDERED. 9 Dated: April 27, 2021 10 kA 1 teiren staves odermacr 7008