Williams v. Ortega

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 LANCE WILLIAMS, Case No.: 18-cv-00547-LAB-MDD 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 O. ORTEGA, ET AL., RE: DEFENDANTS’ MOTION TO 15 Defendants. DISMISS [16] [ECF No. 26] [17] 18 This Report and Recommendation is submitted to United States Judge 19 Larry Alan Burns pursuant to 28 U.S.C. § 636 (b)(1) and Local Civil Rule 20 72.1(c) of the United States District Court for the Southern District of 21 California. 22 For the reasons set forth herein, it is RECOMMENDED that 23 Defendants’ Motions to Dismiss be GRANTED. 24 I. PROCEDURAL HISTORY 25 Plaintiff Lance Williams (“Plaintiff”) is a state prisoner at Richard J. 26 Donovan Correctional Facility (“Donovan”) proceeding pro se and in forma 1 pauperis. (ECF No. 26 at 1).1 On March 15, 2018, Plaintiff filed a complaint 2 pursuant to 42 U.S.C. § 1983 (“Complaint”). (ECF No. 1). The Complaint 3 sets forth various claims against officer J. Melgoza (“Defendant Melgoza”), 4 psychiatric technician/nurse M. Kimani (“Defendant Kimani”), and others. 5 Plaintiff alleges that Defendants Melgoza and Kimani violated his Eighth 6 Amendment rights by acting with deliberate indifference to his serious 7 medical needs. (ECF No. 1 at 8, 11-12). Plaintiff further alleges that 8 Defendant Kimani falsified medical records in violation of California Penal 9 Code sections 132 and 134. (Id. at 2). 10 On June 28, 2019, Defendants Melgoza and Kimani filed a Motion to 11 Dismiss the claims against them. (ECF No. 26). Defendants contend that 12 Plaintiff failed to allege that Defendants Melgoza and Kimani were 13 deliberately indifferent to Plaintiff’s medical needs. (ECF No. 26-1 at 3-4). 14 Defendants further contend that California Penal Code sections 132 and 134 15 do not offer redress under 42 U.S.C. § 1983 . (Id. at 5-6). 16 On July 14, 2019, Plaintiff filed an Opposition to Defendants’ Motion to 17 Dismiss (“Opposition”). (ECF No. 28). In the Opposition, Plaintiff alleges 18 additional facts that were not alleged in the Complaint. In ruling on a 19 motion to dismiss, the court may not consider facts alleged for the first time 20 in opposition to a motion to dismiss. See Cervantes v. City of San Diego, 5 21 F.3d 1273, 1274 (9th Cir. 1993). As such, the Court’s analysis is limited to 22 the facts alleged in the Complaint. 23 II. BACKGROUND FACTS 24 The facts as presented are taken from Plaintiff’s Complaint and are not [26] 1 All pincite page references refer to the automatically generated ECF page 1 to be construed as findings of fact by the Court. This discussion is limited to 2 the allegations regarding Defendants Melgoza and Kimani. 3 Plaintiff’s claims arise from a series of events on March 1, 2018. (ECF 4 No. 1 at 4). On March 1, 2018, Plaintiff walked to the sergeant’s office and 5 crossed paths with officer Ortega (“Defendant Ortega”). (Id.). Defendant 6 Ortega told Plaintiff it was “yard recall” and Plaintiff must return to his cell. 7 (Id.). Plaintiff told Defendant Ortega that Plaintiff was going to see the 8 sergeant about “his court call,” and continued walking. (Id.). The 9 conversation led to an altercation where Defendant Ortega pushed Plaintiff 10 into the wall. (Id. at 5). The altercation escalated and ended with Defendant 11 Ortega handcuffing Plaintiff. (Id.). Plaintiff alleges that Defendant Ortega 12 pulled the handcuffs “extremely tight.” (Id.). Defendant Ortega took 13 Plaintiff to the P.S.U. mental health building and placed Plaintiff in the 14 “cage,” where Plaintiff remained for one hour. (Id.). Plaintiff requested 15 medical throughout the hour he spent in the cage. (Id. at 6). 16 After Plaintiff was released from the cage, Plaintiff returned to his 17 building. (Id. at 8). Plaintiff asked Defendant Melgoza to call medical to 18 treat his injuries sustained during the altercation with Defendant Ortega. 19 (Id.). Defendant Melgoza said, “I’m not calling anybody go tell the Seargent.” 20 [sic] (Id.). Plaintiff requested Defendant Melgoza allow Plaintiff out of the 21 building to speak with the sergeant. (Id.). Defendant Melgoza allowed 22 Plaintiff out of the building. (Id.). Before this conversation with Defendant 23 Melgoza, Plaintiff “went to numerous inmates cells” [sic] to show them his 24 injuries. (Id.). 25 In his examination following this incident, Plaintiff showed Defendant 26 Kimani “fresh dried blood” on his wrist, a cut in his nose [sic], and fresh blood 1 pain” in his body and that he could not move his ring finger. (Id.). Defendant 2 Kimani did not perform a mental health assessment or check Plaintiff’s body 3 for injuries or bruising. (Id. at 12). Plaintiff attached to the Complaint a 4 copy of the medical report Defendant Kimani prepared following the 5 examination. (Id. at 30). The report indicates that Plaintiff had scabs on his 6 wrists. (Id.). The report indicates that Defendant Kimani examined Plaintiff 7 at 12:40 and that a registered nurse was notified at 13:00. (Id.). Plaintiff 8 alleges Defendant Kimani falsified this report. (Id. at 12). 9 III. LEGAL STANDARD 10 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency 11 of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under 12 Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and 13 plain statement of the claim showing that the pleader is entitled to relief.” 14 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted). 15 The pleader must provide the Court with “more than an unadorned, the16 defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atlantic 17 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do 19 not suffice.” Id. The court must assume the truth of the facts which are 20 presented and construe all inferences from them in the light most favorable 21 to the non-moving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 22 2002). 23 A pro se pleading is construed liberally on a defendant’s motion to 24 dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890 , 895 25 (9th Cir. 2002) (citing Ortez v. Washington Cty., 88 F.3d 804 , 807 (9th Cir. 26 1996)). The pro se pleader must still set out facts in his complaint that bring 1 at 570. 2 A pro se litigant is entitled to notice of deficiencies in the complaint and 3 an opportunity to amend, unless the complaint’s deficiencies cannot be cured 4 by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 5 Thus, the court is not required to accept as true allegations that are 6 “supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 . 7 Furthermore, the court “may not supply essential elements of the claim that 8 were not initially pled.” Ivey v. Bd. of Regents of the University of Alaska, 673 9 F.2d 266, 268 (9th Cir. 1982). 10 IV. DISCUSSION 11 A. Deliberate Indifference 12 Plaintiff alleges that Defendants Melgoza and Kimani violated his 13 Eighth Amendment right to be free from cruel and unusual punishment 14 when the defendants delayed treatment and denied Plaintiff access to 15 treatment. (ECF No. 1 at 8, 11-12). Defendants contend that Plaintiff’s 16 claim fails as a matter of law because he has not pled facts sufficient to show 17 that either Defendant acted with deliberate indifference to Plaintiff’s serious 18 medical needs. (ECF No. 26-1 at 4-5). 19 The Eighth Amendment is violated when prison officials demonstrate 20 “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 21 U.S. 97, 104 (1976); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). In 22 order to state a claim for deliberate indifference under the Eighth 23 Amendment, an inmate must plead facts sufficient to show both an objective 24 and a subjective requirement. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th 25 Cir. 2014). 26 First, to satisfy the objective prong, the inmate must show that he 1 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted). A 2 serious medical need is shown if a failure to provide adequate treatment 3 results in wanton and unnecessary infliction of pain. McGuckin v. Smith, 974 4 F.2d 1050 , 1059 (9th Cir. 1992). 5 Next, to satisfy the subjective prong, the inmate must demonstrate that 6 “the official [knew] of and disregard[ed] an excessive risk to inmate health or 7 safety…” Farmer, 511 U.S. at 837 . The official must have been aware of 8 facts or factual circumstances that would allow him to draw the inference 9 that a substantial risk of serious harm to the inmate’s health and safety 10 exists, and he must also draw that inference. Id. 11 It is not enough that the plaintiff merely disagree with the course of 12 treatment provided. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 13 A difference in medical opinion is “insufficient, as a matter of law, to 14 establish deliberate indifference.” Id. (citing Jackson v. McIntosh, 90 F.3d 15 330, 332 (9th Cir. 1996)). 16 1. Defendant Melgoza 17 Plaintiff alleges that Defendant Melgoza was deliberately indifferent to 18 Plaintiff’s serious medical needs. (ECF No. 1 at 3). 19 Plaintiff asked Defendant Melgoza to call medical. (ECF 1 at 8). 20 Defendant Melgoza said, “I’m not calling anybody go tell the Seargent.” [sic] 21 (Id.). Plaintiff requested Defendant Melgoza allow Plaintiff out of the 22 building to speak with the sergeant. (Id.). Defendant Melgoza allowed 23 Plaintiff out of the building. (Id.). Before this conversation with Defendant 24 Melgoza, Plaintiff “went to numerous inmates cells” [sic] to show them his 25 injuries. (Id.). 26 Plaintiff fails to provide any documentation or information which 1 received medical care. By allowing Plaintiff out of the building to speak with 2 the sergeant regarding Plaintiff’s injuries, Defendant Melgoza did not 3 disregard Plaintiff’s health, as Plaintiff so claims. Further, prior to 4 requesting medical care, Plaintiff went to “numerous inmates” to show them 5 his injuries. The time Plaintiff spent showing his injuries to other inmates 6 before seeking medical care suggests Plaintiff’s injuries were not serious 7 medical needs. Plaintiff’s unsupported claim of deliberate indifference to a 8 serious medical need is not sufficient to constitute a constitutional violation. 9 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 10 2. Defendant Kimani 11 Plaintiff alleges that Defendant Kimani was deliberately indifferent to 12 Plaintiff’s serious medical needs because Defendant Kimani failed to call 13 medical or take Plaintiff to medical. (ECF No. 1 at 11). Plaintiff further 14 alleges that Defendant Kimani falsified the March 1, 2018 medical report, in 15 violation of California Penal Code sections 132 and 134. (Id. at 2). 16 Plaintiff asserts that during the examination, he showed Defendant 17 Kimani “fresh dried blood” on his wrist, a cut in his nose [sic], and fresh blood 18 on his shirt. (Id. at 11). Plaintiff attached to the Complaint the medical 19 report Defendant Kimani prepared following the examination. (Id. at 30). 20 The report indicates that Plaintiff had scabs on his wrists. (Id.). The report 21 also indicates that Defendant Kimani examined Plaintiff at 12:20 and that a 22 registered nurse was notified at 13:00. (Id.). 23 There is no objective showing of a serious medical need and no showing 24 of a deprivation of treatment. Plaintiff asked for and received medical care. 25 Defendant Kimani documented the examination in a medical report. The 26 medical report indicates that Plaintiff had scabs on his wrist and that a 1 Defendant Kimani knew of and disregarded an excessive risk to Plaintiff’s 2 health. No inference can be drawn in favor of a substantial risk of serious 3 harm. Plaintiff’s disagreement with Defendant Kimani’s treatment is not 4 enough to demonstrate deliberate indifference to a serious medical need. 5 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). The facts as pled by 6 Plaintiff lack detail sufficient to overcome the high burden of demonstrating 7 deliberate indifference. 8 Accordingly, the Court RECOMMENDS that Defendants’ Motion to 9 Dismiss Plaintiff’s Eighth Amendment claims for Deliberate Indifference be 10 GRANTED as to Defendants Melgoza and Kimani. 11 B. False Report 12 Plaintiff alleges that Defendant Kimani falsified the March 1, 2018 13 medical report in violation of California Penal Code sections 132 and 134. 14 (ECF 1 at 2). Defendants argue that because these sections do not give rise 15 to civil liability, these claims should be dismissed. (ECF 26-1 at 6). 16 California Penal Code section 132 (“Section 132”) makes it a felony to 17 offer in evidence a record that the person knows has been forged. Cal. Penal 18 Code § 132 (West 2019). California Penal Code section 134 (“Section 134”) 19 makes it a felony to prepare a false record with the intent to produce it for 20 any fraudulent purpose in a trial or other proceeding. Cal. Penal Code § 132 21 (West 2019). Criminal statutes do not create civil liability. See Allen v. Gold 22 Country Casino, 464 F.3d 1044, 1048 (2006). As criminal statutes, neither 23 Section 132 nor Section 134 create civil liability. 24 Accordingly, the Court RECOMMENDS that Defendants’ Motion to 25 Dismiss Plaintiff’s claim for falsifying medical records be GRANTED as to 26 Defendant Kimani. 1 V. CONCLUSION 2 Based on the foregoing, it is RECOMMENDED that: 3 Defendants’ Motion to Dismiss Plaintiffs Eighth Amendment claims for 4 || Deliberate Indifference be GRANTED as to Defendants Melgoza and Kimani 5 DISMISSED WITHOUT PREJUDICE. 6 Defendants’ Motion to Dismiss Plaintiffs claim for falsifying medical 7 ||\records be GRANTED as to Defendant Kimani and DISMISSED WITH 8 || PREJUDICE to the extent Plaintiffs falsifying medical records claim 9 ||against Defendant Kimani is based upon California Penal Code Section 132 10 ||and Section 134. 11 This Report and Recommendation will be submitted to the United 12 ||States District Judge assigned to this case, pursuant to the provisions of 28 13 || U.S.C. § 686(b)(1). Any party may file written objections with the court and 14 ||serve a copy on all parties by September 23, 2019. The document shall be 15 ||captioned “Objections to Report and Recommendation.” Any reply to the 16 || objections shall be served and filed by September 30, 2019. 17 The parties are advised that failure to file objections within the 18 ||specified time may waive the right to raise those objections on appeal of the 19 ||court’s order. Martinez v. Yist, 951 F.2d 1158 , 1157 (9th Cir. 1991). 20 IT IS SO ORDERED. Dated: September 6, 2019 Mitel » [> Hon. Mitchell D. Dembin 23 United States Magistrate Judge