Dragasits v. Rucker ( 2020 )

1 NOT FOR PUBLICATION 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Stephen DRAGASITS, Case No.: 18-cv-0512-WQH-AGS 12 Plaintiff, REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO 13 v. DISMISS (ECF No. 29) AND 14 T. RUCKER, et al., PLAINTIFF’S MOTION FOR LEAVE TO AMEND (ECF No. 38) 15 Defendants. 16 17 A prisoner claims that guards confiscated his prescribed orthopedic shoes, which 18 ultimately led to him rupturing his Achilles tendon. He sued them for deliberate 19 indifference to his serious medical needs, among other claims. The guards now move to 20 dismiss much of the complaint. 21 BACKGROUND1 22 On February 9, 2016, plaintiff Stephen Dragasits was sick in his prison bed at R.J. 23 Donovan Correctional Facility when two correctional officers—defendants Marshall and 24 Mitchell—searched his cell and confiscated his orthopedic shoes. (ECF No. 18, at 34-35.) 25 26 27 1 As required at this early stage, this Court accepts “all factual allegations in the complaint as true and constru[es] them in the light most favorable to the nonmoving party.” 28 1 Dragasits was prescribed these shoes to remedy a chronic foot condition that otherwise 2 caused him “substantial” pain. (ECF No. 18, at 11, 37; ECF No. 11, at 432, 447, 467.) 3 For the rest of that day, and for months thereafter, Dragasits attempted to present 4 property receipts for his shoes to the prison guards, but they refused to look at them. (ECF 5 No. 18, at 38.) Dragasits specifically told Marshall and Mitchell that the prison doctor 6 prescribed those shoes to alleviate his foot pain. (Id. at 37.) Although the guards had access 7 to systems to confirm Dragasits’s medical needs, they refused to verify his prescription or 8 to return his specialized shoes. (Id. at 37-38.) They also waited six months to provide 9 Dragasits a cell-search inventory, listing the shoes among the confiscated items. (Id. at 3, 10 38.) 11 Without his prescribed shoes, Dragasits’s painful foot condition deteriorated until 12 his Achilles tendon ruptured. (ECF No. 18, at 3; ECF No. 11, at 503.) 13 DISCUSSION 14 A. Motion to Dismiss Standard 15 This Court may dismiss a case for “failure to state a claim upon which relief can be 16 granted.” Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss, this Court’s “inquiry 17 is limited to the allegations in the complaint, which are accepted as true and construed in 18 the light most favorable to the plaintiff.” Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 19 (9th Cir. 2008). But a plaintiff must do more than allege conduct that is merely possible; 20 he must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 21 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility exists when the plaintiff 22 lays out facts that allow the court to “draw the reasonable inference that the defendant is 23 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When a 24 plaintiff is proceeding pro se, the Court has an obligation “to construe the pleadings 25 liberally” and to afford the plaintiff “the benefit of any doubt.” Martinez v. Barr, 941 F.3d 26 907, 916 (9th Cir. 2019) (citation omitted). 27 28 1 B. Count One: Eighth Amendment Deliberate Indifference 2 Deliberate indifference to a prisoner’s serious medical needs constitutes the 3 “unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment. Estelle 4 v. Gamble, 429 U.S. 97, 104-05 (1976). This includes steps taken by prison guards to 5 “intentionally deny[] or delay[] access to medical care or intentionally interfer[e] with the 6 treatment once prescribed.” Id. A claim of deliberate indifference has two distinct 7 elements: a “serious medical need” and the “deliberate indifference” of prison officials. Id. 8 at 104. 9 1. Serious Medical Need 10 Defendants do not seriously contest Dragasits’s assertion of a serious medical need, 11 and instead focus on the “deliberate indifference” element. (See ECF No. 29, at 4-5.) 12 Dragasits has, in fact, pleaded a “serious medical need,” which is established if the failure 13 to treat the condition “could result in further significant injury or cause the unnecessary 14 and wanton infliction of pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) 15 (quotation marks omitted). A serious need for medical treatment may be indicated by a 16 condition which “significantly affects an individual’s daily activities,” the “existence of an 17 injury that a reasonable doctor or patient would find important and worthy of comment or 18 treatment,” or by “the existence of chronic and substantial pain.” Id. 19 All three indicators are present here. In his complaint, Dragasits describes “deformed 20 toes and bony protrusions” that caused “extreme pain.” (ECF No. 18, at 3.) According to 21 his medical record, health professionals found his condition worthy of comment and 22 treatment, as he was prescribed special orthopedic shoes. (ECF No. 18, at 11; ECF No. 11, 23 at 439, 444, 447.) And Dragasits describes pain that “progressively became worse” after 24 the confiscation of his shoes. (ECF No. 18, at 3.) Thus, Dragasits has alleged a serious 25 medical need. 26 2. Deliberate Indifference 27 Dragasits must still demonstrate that prison officials responded to his serious 28 medical need with “deliberate indifference.” See Farmer v. Brennan, 511 U.S. 825, 834 1 (1994). This requires more than an “ordinary lack of due care.” Id. at 835. Rather, a 2 “defendant must purposefully ignore or fail to respond to a prisoner’s pain or possible 3 medical need[.]” Actkinson v. Vargo, 284 F. App’x 469, 472 (9th Cir. 2008). “[A]llegations 4 that a prison official has ignored the instructions of a prisoner’s treating physician are 5 sufficient to state a claim for deliberate indifference.” Wakefield v. Thompson, 177 F.3d 6 1160, 1165 (9th Cir. 1999). 7 This is exactly what Dragasits describes. Marshall and Mitchell confiscated 8 Dragasits’s prescribed orthopedic shoes. (ECF No. 18, at 34.) Dragasits informed them that 9 the shoes were “ordered by the prison doctor to alleviate foot pain,” and that he had receipts 10 for the confiscated property. (Id. at 38.) While Marshall and Mitchell had the ability to 11 verify this prescription, they still did not return the shoes. (Id. at 37.) And for months, 12 neither Marshall nor Mitchell accepted the property receipts from Dragasits, “making it 13 impossible to recover [his] property . . . .” (Id. at 38.) Far from the “single isolated act of 14 taking one item” that defendants claim occurred here (ECF No. 29, at 5), Dragasits’s 15 complaint describes the refusal of prison guards—over the course of several months—to 16 acknowledge, inquire into, or respond to his claims that the shoes were necessary to 17 alleviate his foot pain. (See ECF No. 18, at 37-38.) 18 So, Dragasits has properly stated a claim that defendants were deliberately 19 indifferent to his serious medical need. See Goods v. L.A. Cty. Sheriff, No. CV 11-2948- 20 JGB (RNB), 2014 WL 2533777, at *9 (C.D. Cal. May 29, 2014) (finding a “triable issue 21 of fact” as to defendant guards’ awareness of risk when “plaintiff apprised them that the 22 orthopedic shoes he was wearing had been given to him by his jail doctor”); Wakefield, 23 177 F.3d at 1165 (holding that plaintiff stated a claim of deliberate indifference by alleging 24 that prison officials “failed to provide Wakefield with the psychotropic medication the 25 prison doctor had determined that he needed” and “refused to contact the prison medical 26 staff to inquire into the location of that medication within the prison, or to make any other 27 effort on Wakefield’s behalf”). 28 1 Thus, defendants’ motion to dismiss the deliberate indifference claim should be 2 denied. 3 C. Count Three: California Government Code § 845.6 Violation 4 Defendants next argue that Dragasits’s failure to comply with the California Tort 5 Claims Act bars his state law claims. 6 1. California Tort Claims Act 7 The CTCA sets out certain steps a plaintiff must take before filing a lawsuit for 8 money or damages against a public entity or employee. Cal. Gov’t Code § 900, et seq. One 9 of these requirements is that the plaintiff file a claim with the Victim Compensation and 10 Government Claims Board within six months of the cause of action accruing. Cal. Gov’t 11 Code § 915(b) (2011) (amended 2016). Compliance with the claim presentation 12 requirement is an “element that a plaintiff is required to prove in order to prevail.” Del Real 13 v. City of Riverside, 95 Cal. App. 4th 761, 767 (2002). So, a plaintiff must allege in his 14 complaint “facts demonstrating or excusing compliance with the claim presentation 15 requirement.” State of Cal. v. Super. Ct., 32 Cal. 4th 1234, 1243 (2004). Failure to do so 16 “is fatal to the cause of action and results in the dismissal of the state law claim.” 17 Bloodworth v. Krall, No. 09-cv-2671-MMA-CAB, 2011 WL 1043726, at *7 (S.D. Cal. 18 Mar. 22, 2011); see also State of Cal., 32 Cal. 4th at 1243 (failing to allege facts regarding 19 claim presentation renders complaint “subject to a general demurrer”). 20 Dragasits may have properly filed his claim, but his complaint includes no mention 21 of such efforts.2 Thus, he has failed to allege an element of his state law causes of action, 22 23 2 Defendants claim that Dragasits “admits in the [Second Amended Complaint] that 24 he failed to comply with the Government [Tort] Claims Act.” (ECF No. 29, at 6.) But the 25 accompanying citation reveals nothing bearing on this issue. (See id. (citing ECF No. 18, at 37-38).) To the extent Dragasits addresses his attempts to comply with any 26 administrative requirements, the Court finds that those efforts relate to Dragasits’s claims 27 regarding the February 9, 2015 search of his cell, not the one conducted on the same date in 2016. (See ECF No. 18, at 31.) Thus, Dragasits has not admitted noncompliance, but 28 1 and his state law claims should be dismissed. But since “a court should grant leave to 2 amend, unless amendment would be futile,” the Court must consider the substance of his 3 state law claims. Cobine v. City of Eureka, 250 F. Supp. 3d 423, 429-30 (S.D. Cal. 2017). 4 2. California Government Code § 845.6 Failure to Furnish Medical Care 5 Public employees are generally not liable for an injury “caused by the failure of the 6 employee to furnish or obtain medical care for a prisoner in his custody.” Cal. Gov’t Code 7 § 845.6. But section 845.6 provides a limited exception to public employee immunity 8 “(1) where the employee knows or has reason to know of the need (2) of immediate medical 9 care and (3) fails to summon such care.” Watson v. State of Cal., 21 Cal. App. 4th 836, 841- 10 42 (1993); see also Lawson v. Super. Ct., 180 Cal. App. 4th 1372, 1385 (2010) (“[L]iability 11 under section 845.6 is limited to serious and obvious medical conditions requiring 12 immediate care.”). The mere presence of a medical condition is not enough to trigger 13 section 845.6; the plaintiff must have an “immediate need for medical care that 14 [defendants] knew (or should have known) of.” Anaya v. Marin Cty. Sheriff, 15 No. 13-cv-04090-WHO, 2015 WL 1407362, at *6 (N.D. Cal. Mar. 27, 2015). 16 Courts have applied section 845.6 in situations when prisoners have either notified 17 guards of an immediate medical problem, or when that problem should have been apparent 18 under the circumstances. See Quinn v. Fresno Cty. Sheriff, No. 1:10-cv-01617-OWW- 19 SMS, 2011 WL 444999, at *10 (E.D. Cal. Feb. 6, 2011) (finding an immediate and obvious 20 medical need when defendant “knew Plaintiff needed daily doses of prescription heart 21 medications”); Ales v. City of Santa Ana, No. 10-cv-01090-CJC-RNBx, 2011 WL 22 13225045, at *2 (C.D. Cal. Jan. 11, 2011) (holding that plaintiff’s broken nose, broken 23 orbital socket, and bruising were “serious and obvious injuries” so as to “establish that 24 [defendants] had reason to know that he was in need of ‘immediate medical care.’”); 25 Zeilman v. Cty. of Kern, 168 Cal. App. 3d 1174 (1985) (finding a triable question of fact 26 as to “whether plaintiff’s use of crutches and her apparently agitated, emotional and 27 weakened condition should have given rise to knowledge of her need for immediate 28 medical care”); Hart v. Orange Cty., 254 Cal. App. 2d 302, 307-08 (1967) (upholding 1 sufficiency of evidence supporting section 845.6 judgment when “custodians were helping 2 [prisoner] to walk,” jail officials “recognized the possibility of illness” and noted that he 3 “did not have the appearance of the ‘standard’ drunk,” but left him overnight in a drunk 4 cell). 5 But when the condition at issue was either non-emergent or unknown to prison 6 officials, courts have regularly dismissed those claims. See Anaya, 2015 WL 1407362, 7 at *6 (dismissing prisoner’s claims that she was denied medication and psychiatric 8 counseling, because she failed to allege facts showing an “immediate” need for medical 9 attention); Watson, 21 Cal. App. 4th at 842-43 (affirming dismissal when prison guards 10 could not have known of inmate’s need for immediate medical care and could not have 11 been expected to diagnose his Achilles tendon rupture, since he was “able to walk” and 12 merely “complained that his ankle was tender”). 13 (a) Confiscation of Prescribed Shoes 14 Dragasits’s complaint, as written, cannot support such a claim. Dragasits notified 15 prison guards that he had a foot-related medical need after they confiscated his shoes. (See 16 ECF No. 18, at 37-38.) But he fails to explain why those guards should have realized his 17 need was immediate. His Achilles tendon injury does not appear to have been diagnosed 18 until almost a year later, in January 2017. (See ECF No. 11, at 495.) And after the 19 confiscation, Dragasits continued to walk around, bringing his property receipts to 20 Marshall’s office and apparently carrying on with his regular prison schedule. (See ECF 21 No. 18, at 37-38.) 22 So, while Dragasits may have been denied medical care, and while such a denial 23 may violate the Eighth Amendment, section 845.6 liability requires more. Dragasits must 24 allege facts showing that his medical needs were immediate, and that prison guards knew 25 or should have known of his immediate need. 26 (b) Failure to Summon Care During Cell Search 27 Dragasits’s claim regarding his sickened state during the cell search is also 28 insufficient, but for a different reason. Dragasits contends that, during the search, he was 1 in the cell the entire time and “so badly sick that [he] could not get up.” (ECF No. 18, at 5.) 2 He was feeling poor earlier in the day―apparently with the “flu” (id. at 35)—and some of 3 his proscribed medication caused him further drowsiness. (Id. at 33.) So, he struggled to 4 speak when the guards performed the “Count,” and was largely unconscious for the 5 subsequent search without either guard checking on him or seeking immediate medical 6 attention. (See id. at 34 (claiming that all he heard was the “cell door moving, and then it 7 eventually shut loudly”).) Certainly, the failure to summon assistance for a non-responsive 8 inmate may state a claim under section 845.6 in some circumstances. See, e.g., Frary v. 9 Cty. of Marin, 81 F. Supp. 3d 811, 842-43 (N.D. Cal. 2015) (holding that a genuine jury 10 issue existed regarding a guard who “took no action to summon medical help or to inform 11 her fellow deputies that [plaintiff] would not wake despite her yelling and hard knocking 12 at his door” and the inmate later died). But here, Dragasits does not allege that he was 13 actually harmed by the lack of immediate medical care. According to his complaint, he was 14 awake a few minutes after the search, and does not mention suffering any ill effects without 15 medical care. (See id. at 35-38 (describing his attempts to regain the things taken from him 16 during the search that same day and the days immediately following without any mention 17 of harm from the lack of immediate medical care).) Without some harm as a result of 18 defendants’ failure, he has not stated a claim. See Anaya, 2015 WL 1407362, at *6 (holding 19 that an inmate failed to state a section 845.6 claim because she failed to “describe how the 20 failure to provide her access [to medical care] caused her specific harm.”). So this claim 21 should be dismissed, but Dragastis should be provided an opportunity to amend to add any 22 harm that he may have suffered as a result of the failure to summon immediate medical 23 care during the search. 24 D. Medical Malpractice 25 Defendants also move to dismiss Dragasits’s medical malpractice claim. But the 26 Court does not read Count Three as raising a standalone medical-malpractice claim. 27 Instead, Dragasits’s only allegation appears to be that defendants violated California 28 Government Code Section 845.6 by failing to summon assistance when he was sick in bed 1 and by not returning his orthopedic shoes. (See ECF No. 18, at 20.) The only time Dragasits 2 references medical malpractice in Count Three is in the section heading “MEDICALLY 3 NEGLIGENT AND MALPRACTICE IN VIOLATION OF CAL. GOV. CODE § 845.6.” 4 (Id. at 19.) Nowhere does he allege the elements of medical malpractice. 5 Thus, defendants’ motion to dismiss the medical malpractice claim should be denied 6 as moot. 7 E. Count Four: California Constitution, Art. I, §§ 15 and 17 8 Finally, defendants move to dismiss Dragasits’s claims under the California 9 Constitution, regarding his rights to due process (Cal. Const. art. I, § 15) and to be free 10 from cruel and unusual punishment (Cal. Const. art. I, § 17). Defendants argue that no 11 private right of action exists under those California Constitution sections. 12 1. Private Right of Action for Damages 13 When determining whether an action for damages exists in a provision of the 14 California Constitution, a court must engage in a two-step inquiry. Katzberg v. Regents of 15 Univ. of Cal., 29 Cal. 4th 300, 317 (2002). First, the court must look at the language and 16 history of the provision for an affirmative intent to authorize a claim for damages. Id. If no 17 such intent is present, it must then consider whether to recognize a right to damages, based 18 on whether “an adequate remedy exists, the extent to which a constitutional tort action 19 would change established tort law, and the nature and significance of the constitutional 20 provision.” Id. 21 Neither sections 15 nor 17 of the California Constitution permit an action for 22 damages. The history and language of the sections is devoid of any suggestion of a private 23 right of action, and there is an adequate remedy in section 1983 for the same claims. 24 Reinhardt v. Santa Clara Cty., No. C05-05143 HRL, 2006 WL 662741, at *8 (N.D. Cal. 25 Mar. 15, 2006) (finding no damages remedy under section 15 because there was no “intent 26 to include a damages remedy, and because there are adequate alternative forms of relief 27 (habeas corpus and the Bane Act).”); Giraldo v. Dep’t of Corr. & Rehab., 168 Cal. App. 28 4th 231, 255 (2008) (finding no damages remedy under section 17 since there is “nothing 1 to suggest that the voters of California intended to create a private right of action” and 2 plaintiff had “adequate alternative remedies available”). 3 So, Dragasits’s claims for damages under the California Constitution should be 4 dismissed. And because any amendment to the facts underlying this claim could not cure 5 the lack of a private right of action for damages, the dismissal should be with prejudice 6 (that is, without leave to amend). See Cervantes v. Countrywide Home Loans, Inc., 656 7 F.3d 1034, 1041 (9th Cir. 2011) (allowing dismissal without leave to amend because 8 “amendment[] would fail to cure the pleading deficiencies and [the] amendment would be 9 futile.”). 10 2. Private Right of Action for Declaratory and Injunctive Relief 11 While neither sections 15 nor 17 of the California Constitution support claims for 12 money damages, Dragasits also seeks injunctive and declaratory relief. (ECF No. 18, 13 at 24.) “Even in the absence of a private right of action for damages, an individual may 14 maintain an action for equitable relief for ongoing violations of the Constitution.” Giraldo, 15 168 Cal. App. 4th at 257; see also Katzberg, 29 Cal. 4th at 307 (“[L]ike many other 16 constitutional provisions, [article I, section 7(a)] supports an action, brought by a private 17 plaintiff against a proper defendant, for declaratory relief or for injunction.”). Here 18 Dragastis asserts that defendants subjected him to cruel and unusual punishment when they 19 confiscated his prescribed orthopedic shoes. (See ECF No. 18, at 11, 20, 21.) He has not 20 yet received them back, and he asks for their return as injunctive relief. (Id. at 40.) He also 21 seeks a declaratory judgment regarding the illegality of defendants’ actions. (Id. at 22.) So, 22 while his claims for damages under the California Constitution should be dismissed, his 23 claims for any equitable relief should survive. To that extent, defendants’ motion to dismiss 24 should be denied. 25 F. Motion to Amend 26 In response to defendants’ motion to dismiss, plaintiff recently moved to file a third 27 amended complaint. (ECF No. 38.) But this Court is already recommending that plaintiff 28 be provided an opportunity to amend his complaint, except for certain claims that would 1 || be futile to amend. And plaintiff does not request an opportunity to bring any new claims. 2 || (See id.) So, plaintiff's motion to amend should be denied as moot. 3 CONCLUSION 4 This Court recommends that: 5 1. Defendants’ motion to dismiss Count I should be DENIED, as plaintiff 6 successfully states a claim for an Eighth Amendment violation. 7 2. To the extent that defendants seek to dismiss an unpleaded claim of medical 8 malpractice in Count III, defendants’ motion should be DENIED as moot. 9 Otherwise, defendants’ motion to dismiss Count III should be GRANTED with 10 leave to amend, as plaintiff fails to state a claim for a violation of California 11 Government Code Section 845.6. 12 3. Defendants’ motion to dismiss Count IV should be DENIED, to the extent it 13 seeks to dismiss plaintiff's request for declaratory and injunctive relief under 14 article I, sections 15 and 17 of the California Constitution. But to the extent that 15 defendants seek to dismiss plaintiff's request for monetary damages in Count IV, 16 defendant’s motion should be GRANTED without leave to amend (that is, 17 GRANTED WITH PREJUDICE). 18 4. Plaintiffs motion to amend should be DENIED as moot. 19 5. Plaintiff must amend his complaint within 30 days of the District Judge’s 20 adoption of this Report or the District Judge’s allowing further amendment. 21 Within 14 days of service of this report, the parties must file any objections to it. See 22 U.S.C. § 636(b)(1). The party receiving any such objection has 14 days to file any 23 ||response. Fed. R. Civ. P. 72(b)(2). 24 ||Dated: January 17, 2020 25 = 6 Hon. ndrew G. Schopler United States Magistrate Judge 27 28 11