Opinion
ED CV 22-1151-TJH(E)
02-07-2023
DARYL HARMON, Plaintiff, v. E. REYNOSA, ET AL., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Terry J. Hatter Jr., United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
Plaintiff, a state prisoner incarcerated at the Ironwood State Prison (“ISP”), filed a “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” on July 7, 2022. Plaintiff's claims arise from a May 22, 2022 incident during which Plaintiff reportedly fell from the back of a prison van while unloading property from the van. Pursuant to 28 U.S.C. section 1915A, the Court filed an “Order Dismissing Complaint With Leave to Amend” on January 18, 2023. Plaintiff filed a “First Amended Complaint” on February 1, 2023.
SUMMARY OF ORIGINAL COMPLAINT
Defendant by Defendant, the original Complaint alleged:
Defendant Reynosa
On May 22, 2022, Plaintiff was thrown from the back of a moving van headfirst onto concrete pavement (Complaint, ECF Dkt. No. 1, p. 9). Plaintiff fell “2 ft head-first and 3 ft down to the concrete pavement (id., p. 9). Defendant Reynosa witnessed Plaintiff's fall but “just stood there and did nothing” (id., p. 9). Reynosa “failed to act in accordance with CDCR [California Department of Corrections and Rehabilitation] Policy, Procedure and training” (id.). Reynosa had a legal duty to activate his alarm or personal alarm device to signal that a “man down” emergency had occurred (id.). There is no record or statement in Reynosa's report indicating that Reynosa notified his supervisor of the incident “in the moment of the incident” (id.). Reynosa “did not contact B-Facility Central Control Watch Office nor did he contact B-yard Medical” (id.). As a result of Reynosa's negligence, Plaintiff lay on the concrete and dirt “in pain and suffering in eternal trauma to [Plaintiff's] tailbone” (id.). Plaintiff lay there for 20-30 minutes until a B-Facility LVN [licensed vocational nurse] arrived (id.). Reynosa's breach of his legal duty contributed to Plaintiff's “eternal back injuries” and bruised and sprained tailbone (id.).
Defendant Vaca
On May 22, 2022, after the Complex Control Transportation Officer parked the van, he turned the engine off, grabbed the keys and let Plaintiff out of the back door (id., p. 11). Plaintiff and the officer went to the B-Facility Medical Gate (id.). Defendant Reynosa unlocked the gate so that Plaintiff could retrieve a cart for Plaintiff's personal property (id.). Four B-Facility officers, one of whom was Defendant Vaca, accompanied Plaintiff as he pushed the cart through the gate (id.). Vaca went around to the front of the van, out of Plaintiff's sight, while the other three officers stayed at the back of the van (id.). Vaca stated in his report that he entered the driver's compartment (id.). At that time, Plaintiff was at the back of the van unloading his property (id.). Vaca caused the van to move forward 3 to 6 inches (id.). The van then stopped suddenly, causing Plaintiff to lose his balance (id., pp. 11-12). Plaintiff was thrown headfirst out of the van two feet forward and three feet down onto the concrete pavement on the left side of his tailbone, and his knees hit the pavement hard (id., p. 12).
Vaca exited the van, came to the back of the van and observed Plaintiff yelling in pain (id.). Vaca had a legal duty to act in accordance with “CDCR Policies, Protocol, Procedures and Officer Training” to activate his alarm to signal the emergency and to contact the “B-Facility Central Control Watch Office,” which was located less than 100 yards away (id.). Vaca did not immediately contact his supervisor, Sergeant Vargas, or call or contact B-Facility Medical (id.). Instead, Vaca stood there waiting for others to react (id.). Vaca left the scene shortly thereafter (id.). Plaintiff called out to Vaca, but Vaca did not respond (id.). Vaca's negligence caused Plaintiff to suffer a traumatic injury to his lower back and a bruised and sprained tailbone (id.). Plaintiff underwent two months of treatment and physical therapy, and had to walk with a cane until his back and legs regained strength (id.).
Defendant Curielmagana
Defendant Curielmagana was one of the officers who walked with Plaintiff to the back of the van (id., p. 15). As Plaintiff unloaded his property from the back of the van, the van suddenly moved forward 3-6 inches and stopped, causing Plaintiff to lose his footing, and throwing Plaintiff headfirst onto the pavement (id.). Curielmagana, who had just witnessed a “Man Down” incident, had a legal duty to use due care and to activate his alarm signaling the emergency, in accordance with “CDCR Policies, Protocol, Procedures and Officer Training” (id.). Curielmagana did not notify his supervisor, Sergeant Vargas, or the B-Facility Central Control Watch Office (id., pp. 15-16).
While Plaintiff was lying on the ground, Defendant Vaca came from the driver's side of the van and Defendant Reynosa asked Vaca, “What did you do?” (id., p. 16). Vaca responded, “The van was in park” (id.). At that point, Defendant Curielmagana instructed Vaca “not to say another word” (id.). Curielmagana, who then began speaking in Spanish to Defendants Vaca, Reynosa and Leon, told Vaca to leave the scene (id.). When Plaintiff asked Curielmagana why he had begun speaking in Spanish, Curielmagana did not respond (id.). Vaca left the scene (id.). There is no record that Curielmagana reported the emergency, although Plaintiff lay on the ground for 20-30 minutes in pain (id.). Instead, Curielmagana grabbed Plaintiff's hand and arm, insisting that Plaintiff sit up (id., pp. 16-17). Plaintiff said to Curielmagana, “What are you doing? Don't touch me! My knees are in pain! Where is the sergeant? Wait on Medical before touching me, you shouldn't be touching me anyway” (id., p. 17). Curielmagana improperly grabbed Plaintiff's hand and arm, attempting to lift Plaintiff before Plaintiff was seen by Medical and evaluated (id.). Curielmagana kept trying to get Plaintiff to sit up despite Plaintiff's cry of pain and Plaintiff's repeated statements that Plaintiff's knees hurt (id.). ///
Within thirty minutes after Plaintiff's fall, LVN Barcenas arrived (id.). Barcenas reached down toward Plaintiff's knee, touched Plaintiff's brace, and asked if Plaintiff could get to his feet (id.). Plaintiff said he could not do so because of pain in his knees and numbness in his lower back (id.). Curielmagana lifted Plaintiff into a wheelchair, without Plaintiff's consent and prior to any medical evaluation of Plaintiff's condition (id.). Curielmagana could have injured Plaintiff further (id.).
Defendant Leon
On May 22, 2022, Defendant Leon was one of the four officers who walked through the gate (id., p. 19). After Leon saw Plaintiff fall, Leon had a legal duty to act in accordance with “CDCR Policies, Protocol, Procedures and Officer Training” to activate his alarm to signal the emergency and to contact the B-Facility Central Control Watch Office (id., pp. 19-20). There is no record or statement indicating that Leon "acted when he should have acted” (id., p. 20). Leon just stood around waiting for others to act (id.). Plaintiff lay on the ground for 20-30 minutes (id.).
After LVN Barcenas arrived, Leon assisted Defendant Curielmagana in placing Plaintiff in the wheelchair (id.). Plaintiff did not want to be placed in a wheelchair; he wanted to go to the hospital (id.). However, Plaintiff did not resist the officers (id.). Plaintiff was feeling dizzy and his head hurt (id.). Instead of taking Plaintiff to “B-Facility Medical,” officers took Plaintiff to the “B-Facility Program Office” (id.). Leon told Plaintiff that Plaintiff first had to speak to the Sergeant (id.). Plaintiff sat in the wheelchair for another ten or fifteen minutes (id.).
The yard sergeant came and asked Plaintiff, “What happened to you?” (id., p. 21). It was clear that the officers had not informed the sergeant about the “man down” incident (id.). Defendants Curielmagana, Vaca, Gonzalez and Leon did not communicate with their supervisor, Sergeant Vargas, to inform Vargas that Plaintiff had suffered a three foot fall from the van onto the concrete pavement (id.). Had these Defendants done so, the supervisor would have arrived at the scene immediately (id.). Leon's negligence contributed to Plaintiff's suffering (id.).
Defendant Barcenas
When LVN Barcenas arrived, she asked Plaintiff what his pain level was, and Plaintiff responded that it was a “10” (id., p. 23). Plaintiff informed Barcenas that Plaintiff had been thrown head first two feet out of the van and three feet down onto the pavement (id.). Plaintiff said his tailbone and knees had hit the pavement (id.). After an examination, Barcenas said she saw no swelling in Plaintiff's knees and “no apparent injuries” (id.). Barcenas cleared Plaintiff for rehousing on Facility B (id.).
Barcenas wrote no memorandum or narrative report for the “incident packet” (id.). She did not document that Plaintiff was sitting up or standing the entire time (id.). Barcenas had a legal duty to use due care when an inmate suffers a traumatic fall three feet from the back of a prison van, a fall which could have caused internal bleeding, fractures, broken bones or even death if the inmate was not hospitalized immediately (id., p. 24).
At approximately 8:00 p.m. that evening, Plaintiff began to experience extreme pain in his lower back and up the left side of his spine to his neck (id.). Plaintiff filled out a “Health Care Services Request Form,” describing the intense pain, and submitted the form to a prison officer (id.). A staff doctor saw Plaintiff on May 25, 2022 and prescribed an injection in Plaintiff's left hip, a walking cane and a mobility impaired vest (id.). The doctor also ordered x-rays of Plaintiff's spine and back (id.). Plaintiff saw the doctor again on June 7, 2022 and learned that the x-rays had ruled out a broken or fractured tailbone (id., pp. 24-25). The doctor ordered eight weeks of therapy and continued use of the cane and the mobility vest (id., p. 25).
Had Barcenas used due care, she would have considered that it was quite possible, in light of Plaintiff's age and the circumstances of the fall, that Plaintiff had suffered internal injuries requiring hospitalization (id.). As a result of Barcenas' negligence, Plaintiff suffered untreated traumatic back pain for three days (id.). Plaintiff still suffers from weak muscles in his lower back (id.).
SUMMARY OF RELEVANT PORTIONS OF THE “ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND”
In dismissing the Complaint, the Court advised Plaintiff of the requirements for stating a section 1983 claim in general and an Eighth Amendment claim in particular. In pertinent part, the Order advised:
Prison conditions violate the Eighth Amendment if they are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Prison officials may not deprive prisoners of the “minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations and citations omitted). The Eighth Amendment “requires that inmates be furnished with the basic human needs, one of which is reasonable safety." Helling v. McKinney, 509 U.S. 25, 33 (1993) (citation and internal quotations omitted).
To state an Eighth Amendment claim, a plaintiff must allege that prison officials' conduct was sufficiently harmful to establish a constitutional violation (the “objective” test), and that the officials acted with a sufficiently culpable state of mind (the “subjective” test). See Wilson v. Seiter, 501 U.S. 294, 298 (1991); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), cert. denied, 532 U.S. 1065 (2001). The objective test looks to whether the deprivation was sufficiently serious, as determined by the conditions alleged. See Farmer v. Brennan, 511 U.S. at 834; Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), cert. denied, 532 U.S. 1065 (2001). The plaintiff must allege conditions so serious as to be outside the bounds of those which “today's society chooses to tolerate.” Helling v. McKinney, 509 U.S. at 36.
Under the subjective test, deliberate indifference is the minimum showing of culpability necessary to state a claim. See Farmer v. Brennan, 511 U.S. at 834; Estelle v. Gamble, 429 U.S. [97,] . . . 104 [(1976)]. To be liable for “deliberate indifference,” a prison official must “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. at 837. “[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment.” Id. at 838.
Here, Plaintiff's claim that any Defendant purportedly exposed Plaintiff to a risk of serious harm by failing to secure the van from moving is based only on allegations of negligence. Allegations of negligence do not suffice to plead deliberate indifference. See Estelle v. Gamble, 429 U.S. at 105-06; see Martinez v. Three Unknown Guards of Cal. Dep't of Corr. & Rehab., 2017 WL 2535459, at *3 (E.D. Cal. June 12, 2017) (allegations that plaintiff was injured by a fall when the bus from which he was exiting suddenly moved forward insufficient; “[A]t most Plaintiff has pleaded that the guards were aware of a need to escort the inmates off of the bus safely, but were negligent. Negligence is not a violation of the Eighth Amendment.”); Mercado v. Delestine, 2019 WL 2432109, at *3 (E.D. Cal. June 11, 2019) (allegations that Plaintiff fell in a prison bus when the driver caused the bus to jerk forward twice alleged only negligence, not a constitutional claim); Ortiz v. Garza, 2015 WL 7271697, at *2 (E.D. Cal. Nov. 17, 2015) (allegations that plaintiff was injured when driver of prison van lost control and collided with a cement ramp insufficient to allege a constitutional claim); Jones v. Dazo, 2010 WL 1197481, at *2 (E.D. Cal. Mar. 23, 2010) (allegations that correctional official rear-ended a prison van in which plaintiff was seated did not state an Eighth Amendment claim; “the circumstances plaintiff describes indicate that the rear-ending of the van was an accident, at most a case of negligence; there is no claim that defendant Holloway deliberately ran into the van in which plaintiff
was seated”).
A prison official also can violate a prisoner's Eighth Amendment right to be free of cruel and unusual punishment if the official is deliberately indifferent to the prisoner's serious medical needs. See Farmer v. Brennan, 511 U.S. at 834; Estelle v. Gamble, 429 U.S. at 104; McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Here, regardless of who initially contacted medical authorities, it appears from the Complaint that, within a short period of time after Plaintiff's fall, a medical provider, Defendant LVN Barcenas, appeared at the scene and a wheelchair was provided for Plaintiff. Plaintiff has not alleged any facts showing that Defendants Reynosa, Vaca, Curielmagana or Leon subjectively knew of, and disregarded, any serious risk of harm to Plaintiff from purportedly failing to act promptly to obtain medical aid for Plaintiff.
Plaintiff appears to allege that Defendants were responsible for an asserted delay in Plaintiff's receipt of medical treatment. To show deliberate indifference to medical needs based on an alleged delay, a plaintiff must show that the delay caused “substantial harm” to the plaintiff. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (delay of surgery
was not deliberate indifference unless it was harmful); see also Caines v. Interian, 855 Fed. App'x 419, 420 (9th Cir. 2021), cert. denied, 142 S.Ct. 1388 (2022) (affirming dismissal because “allegations of a delay in surgery, without any evidence that the delay caused substantial harm, cannot support a deliberate indifference claim”) (citation and internal quotations omitted). Plaintiff does not allege facts plausibly showing that he suffered substantial harm during the delay between the alleged incident and the asserted evaluation by Defendant Barcenas. To the extent Plaintiff relies on the alleged delay between the incident and Plaintiff's examination by a doctor three days later, Plaintiff has alleged no facts plausibly showing that any Defendant was responsible for this alleged delay. To establish a constitutional violation under section 1983 against an individual defendant, the defendant's act or omission must cause the deprivation of the plaintiff's constitutional rights. Redman v. County of San Diego, 942 F.2d 1435, 1454 (9th Cir. 1991) (en banc), cert. denied, 502 U.S. 1074 (1992), abrogated in part on other grounds, Farmer v. Brennan, 511 U.S. 825 (1994); accord Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
Plaintiff also appears to allege violations of state law and state prison regulations. It is axiomatic that, to state a claim under section 1983, the plaintiff must allege a violation of a right secured by the federal constitution or federal law. See Parratt v. Taylor, 451 U.S. 527, 535 (1982),
overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). Plaintiff's allegations of violations of state law or prison regulations, policies or procedures do not suffice to plead a section 1983 claim. See Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (violations of California prison regulations “do not establish a federal constitutional violation”) (citations omitted; emphasis in original); Cornejo v. County of San Diego, 504 F.3d 853, 855 n.2 (9th Cir. 2007) (“a claim for violation of state law is not cognizable under § 1983”) (citation omitted); Lowell v. Poway Unif. Sch. Dist., 90 F.3d 367, 370-71 (9th Cir. 1996) (“To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress”) (citation omitted); Kitilya v. Cal. Dep't of Corr. and Rehab., 2018 WL 3129816, at *2 (E.D. Cal. June 20, 2018) (“Section 1983 provides no redress for prison officials' mere violation of state prison regulations.”) (citations omitted).
DISCUSSION REGARDING FIRST AMENDED COMPLAINT
The First Amended Complaint contains essentially the same factual allegations contained in the original Complaint. For the same reasons previously explained in the “Order Dismissing Complaint With Leave to Amend,” the factual allegations in the First Amended Complaint fail to state a cognizable Eighth Amendment claim. Again, Plaintiff alleges he was seriously injured through the fault of others, and Plaintiff assertedly believes he should have received different and more prompt medical attention and treatment. As the Court previously explained, however, Plaintiff's factual allegations, which sound only in negligence, fail to state a constitutional claim against any Defendant. See Estelle v. Gamble, 429 U.S. at 105-06 (negligence does not violate the Eighth Amendment); Martinez v. Three Unknown Guards of Cal. Dep't of Corr. & Rehab., 2017 WL 2535459, at *3 (same); see also Ashcroft v. Iqbal, 556 U.S. at 678, 686 (plaintiff must allege more than an “unadorned, the-defendant-unlawfully-harmed me accusation”; a pleading that “offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”) (citations and quotations omitted; emphasis added). Again, Plaintiff fails to allege facts (as distinguished from conclusions) from which it plausibly might be inferred that any Defendant subjectively knew of, and deliberately disregarded, any serious risk of harm to Plaintiff. Thus, the First Amended Complaint confirms Plaintiff's inability to state a non-conclusory, cognizable federal claim based on the unfortunate events of May 22, 2022.
RECOMMENDATION
In the “Order Dismissing Complaint With Leave to Amend,” the Court cautioned Plaintiff that failure to file a First Amended Complaint which stated a cognizable claim for relief could result in the dismissal of this action. Despite this caution, the First Amended Complaint (which is exceedingly similar to the original Complaint) again fails to state a cognizable federal claim. In the present circumstances, further amendment would be futile. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (affirming dismissal without leave to amend where court advised plaintiff of pleading deficiencies but plaintiff failed to correct those deficiencies in amended pleading); Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir. 2000), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and had discussed with plaintiff the substantive problems with his claims); Plumeau v. Sch. Dist. #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile). The federal claims in the First Amended Complaint should be dismissed without leave to amend and with prejudice. See id.; see also 28 U.S.C. § 1915A (complaint by prisoner seeking redress from a governmental officer may be dismissed sua sponte if the complaint “fails to state a claim upon which relief may be granted”).
Plaintiff may have viable state law claims, for negligence or otherwise. In light of the dismissal of Plaintiff's federal claims without leave to amend, however, the Court should decline to exercise supplemental jurisdiction over any remaining state law claims. See 28 U.S.C. § 1367(c)(3); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640-41 (2009) (district court has discretion to decline to exercise supplemental jurisdiction over state law claims where court has dismissed claims over which it had original jurisdiction); Lacey v. Maricopa County, 693 F.3d 896, 940 (9th Cir. 2012) (en banc) (same).
Accordingly, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered: (a) dismissing the federal claims in the First Amended Complaint without leave to amend and with prejudice; and (b) dismissing any state law claims in the First Amended Complaint without leave to amend but without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
TERRY J. HATTER JR. UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment shall be entered: (1) dismissing the federal claims in the First Amended Complaint without leave to amend and with prejudice; and (2) dismissing any state law claims in the First Amended Complaint without leave to amend but without prejudice.
IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order and the Judgment of this date on Plaintiff.
JUDGMENT
TERRY J. HATTER JR., UNITED STATES DISTRICT JUDGE
IT IS ADJUDGED that: (1) the federal claims in the First Amended Complaint are dismissed without leave to amend and with prejudice; and (2) any state law claims in the First Amended Complaint are dismissed without leave to amend but without prejudice.