(PC) Embrey v. McComas

Opinion

JORDAN LEE EMBREY, Case No. 1:20-cv-00650-BAM (PC) Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE v. FINDINGS AND RECOMMENDATIONS FRESNO COUNTY SHERIFF, et al., REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS Defendants. FOURTEEN-DAY DEADLINE Plaintiff Jordan Lee Embrey (“Plaintiff”) is a county jail inmate proceeding pro se in this civil rights action under 42 U.S.C. § 1983. On August 10, 2020, the Court screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 9.) Plaintiff’s first amended complaint, filed on September 1, 2020, is currently before the Court for screening. (ECF No. 10.) I. Screening Requirement and Standard The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. II. Plaintiff’s Allegations Plaintiff is currently housed in the Fresno County Jail, where the events in the amended complaint are alleged to have occurred. Plaintiff names the following defendants in their individual and official capacities: (1) Captain Stephen McComas; (2) Brandon Boggs, Wellpath Medical; (3) Danielle Muratore, Wellpath Medical; (4) Amanda Gibson, Wellpath Medical; (5) Lieutenant Ned Barton; (6) Jamie Silveira, Wellpath Medical; (7) Karen Nunez; (8) Dr. Obendena; (9) Z. Williams, Wellpath Medical LVN; (10) Sheriff Margaret Mimms; and (11) A. Snyder. Plaintiff contends that on August 18, 2018, he was beaten and had his jaw broken. He was sent to CRMC and admitted. He was told that he had a severe break and would have surgery the next day. Shortly thereafter, a nurse told him that he was being sent back to the Fresno County Jail. A specialist put a single wire in his lower jaw to stop his jaw from falling. The lower left side of his jaw was not connected to the upper or lower jaw, only gum tissue. Plaintiff informed the specialist that he was being released to the jail. The specialist said that the jail would send him back the following day, but the sheriff’s officer that was present told him that would not happen, and that Plaintiff should stay there until after surgery. Plaintiff was still sent back to jail. Plaintiff claims that the act of sending him back to the jail deprived him of medical due process for his serious medical need. He also claims medical negligence by both the hospital and the Fresno County Jail, which caused his jaw to be uneven and his surgery not being done in adequate time. After arriving back at the Fresno County Jail, Plaintiff informed Dr. Obendena that he was to have surgery the next day. Dr. Obendena informed Plaintiff that it could not happen, and that Plaintiff should have stayed at the hospital. Dr. Obendena then cleared Plaintiff for housing on a medical floor instead of sending him back to the hospital to ensure that he received surgery. Plaintiff alleges:

I then informed the medical staff, the COS and asked them to tell Dr. Obendena the next day that if they can inform the [illegible] “Ned Barton” Captain “Stephen McComas,” and the higher up medical people who deal with such schedualling [sic] “Amanda gibson” brandon boggs” if I was going to be sent to my surgery for today was the day I was to get my jaw fixed. I was told again I should have stayed at the hospital if I had surgery today. (Doc. No. 10 at 8.) While on the medical floor, Plaintiff was in constant pain and discomfort because the medication he was given was not strong and it was cancelled after a few weeks. Plaintiff continually asked LVN Williams and Dr. Obendena why he was not sent for his surgery and when he was going to be sent. They said they did not know, and that Plaintiff should have had surgery when he was sent to hospital. Plaintiff alleges that he was not taken back to the hospital for surgery until November 7, 2018, three months later. Plaintiff alleges that Dr. Obendena did not send Plaintiff back to the hospital immediately after being informed that he was to have surgery. Knowing that the jail would not send Plaintiff back, Dr. Obendena should not have cleared Plaintiff to stay on the medical floor until he had the proper surgery. On the day his surgery, Plaintiff’s jaw was re-broken because the bones were growing and fusing together. Plaintiff’s jaw was put back in place and wired shut. He was then sent back to the medical floor in the Fresno County Jail. On or around December 11 or 13, 2018, Plaintiff was taken back to CRMC and the wires were removed. The doctor reportedly informed Plaintiff that because it took too long to do the first surgery, he had to have several other surgeries. The doctor also asked why Plaintiff cancelled the first surgery and did not get it fixed. The doctor stated that Plaintiff’s jaw was not aligned correctly and that he would need to return for more surgery. Plaintiff was then sent back to the Fresno County Jail medical floor. When he asked Dr. Obendena why his surgery was cancelled, Plaintiff was told that it was the higher up medical scheduling. Dr. Obendena also passed the blame to the hospital. Plaintiff claims that he should have been housed on the medical floor, where conflicts are rare, because of his jaw. In May 2019, he was sent to the M5 5th Floor A-pod. During that time, he was in constant pain and the Tylenol-codeine pills that took away some of the pain were cancelled. Plaintiff alleges that he was housed with cellmates that wanted to fight and cause conflict. He asserts that this could have seriously harmed him. At the end of July to the beginning of August, Plaintiff was sent back to CRMC to get the metal in his mouth removed in preparation for another surgery that would take place in a few months. Plaintiff was then sent back to the M5 A-pod. Plaintiff claims that he feared for his safety until he returned to CRMC for another surgery in January because he was housed with a cellmate that wanted to fight. Following surgery, Plaintiff’s jaw is still in pain and is uneven. Plaintiff asserts that this is because he did not have the proper surgery at the proper time. Plaintiff further alleges that Sheriff Margaret Mimms was at the top of the command and overseer of the Fresno County Jail. Plaintiff claims she was well aware of the policies, but she failed to comply with the guidelines of those policies to ensure Plaintiff’s medical needs. As relief, Plaintiff seeks compensatory and punitive damages, along with expert care. III. Discussion A. Official Capacity To the extent Plaintiff is attempting to pursue damages claims against the named Defendants in their official capacities, he may not do so. “The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials in their official capacities.” Aholelei v. Dep’t. of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacities, Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or suits for injunctive relief brought against state officials in their official capacities, Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991). Thus, Plaintiff may only proceed against Defendants in their individual capacities for monetary damages. B. Linkage Requirement The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). With the exception of LVN Williams, Dr. Obendena and Sheriff Mimms, Plaintiff’s amended complaint fails to adequately link the remaining named defendants to alleged constitutional violations. Although Plaintiff mentions Defendants Barton, McComas, Gibson and Boggs in his complaint, he does not include any factual allegations identifying what each of these individual defendants did or did not do that resulted in a violation of his rights. Plaintiff also fails to include any factual allegations in his amended complaint related to Defendants Muratore, Silveira, or Nunez. Despite being provided with the relevant pleading standard, Plaintiff has failed to cure this deficiency as to Defendants Barton, McComas, Gibson, Boggs, Muratore, Silveira or Nunez. C. Supervisory Liability Insofar as Plaintiff is attempting to assert a claim against Defendant Mimms (or any other defendant) based on her supervisory role, he may not do so. Supervisory personnel may not be held liable under section 1983 for the actions or omissions of subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977; accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted). Plaintiff’s amended complaint does not include any allegations linking Defendant Mimms to a constitutional violation or otherwise identifying a deficient policy that was the moving force of any constitutional violation. Instead, Plaintiff alleges that Defendant Mimms failed to follow policy. However, Plaintiff’s amended complaint does not include any factual allegations demonstrating or suggesting that Defendant Mimms knew that Plaintiff needed jaw surgery and it was not timely scheduled. D. Eighth and Fourteenth Amendments - Medical Care It is unclear whether Plaintiff was a pretrial detainee or convicted prisoner during the relevant time period.1 To the extent that Plaintiff was a pretrial detainee during the relevant time

1 Although unclear, it appears that Plaintiff was a pretrial detainee at the time of the events alleged. The Court takes judicial notice of Plaintiff’s pending criminal matter in Fresno County Superior Court, The People of the State of California v. Jordan Lee Embrey, Case No. F16902216, filed October 19, 2017 and currently set for a tentative jury trial date of October 13, 2020. The court may take judicial notice of state court records. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007); Kasey v. Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir. period, his claims concerning his medical care arise under the Fourteenth Amendment’s Due Process Clause rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that “the Due Process Clause rather than the Eighth Amendment” is relied on in considering claims of pretrial detainees because “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions”); Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (“We have said that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” (internal quotation marks omitted)). The Ninth Circuit has held that “the proper standard of review” for claims of inadequate medical care for pretrial detainees is “objective indifference.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1120, 1124–25 (9th Cir. 2018) (extending the “objective deliberate indifference standard” articulated in Castro to inadequate medical care); see also Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir. 2019) (noting that Gordon “recognized that Castro’s objective deliberate indifference standard extends to Fourteenth Amendment claims by pretrial detainees for violations of the right to adequate medical care”). Accordingly, in order to state a claim against any defendant for denial of medical care while a pretrial detainee, plaintiff must allege that the defendant: (1) “made an intentional decision with respect to the conditions under which the plaintiff was confined”; (2) the “conditions put the plaintiff at substantial risk of suffering serious harm”; (3) the “defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious”; and (4) “by not taking such measures, the defendant caused the plaintiff’s injuries.” Gordon, 888 F.3d at 1125. At the pleading stage, the Court finds that Plaintiff’s amended complaint states a cognizable medical deliberate indifference claim against Defendants Dr. Obendena and Williams. Even if Plaintiff was a convicted prisoner at the time of the alleged events, the Court finds that

1964). Plaintiff’s amended complaint states a cognizable claim for deliberate indifference arising under the Eighth Amendment. Denial or delay of medical care can violate the Eighth Amendment if it amounts to cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). More specifically, a violation occurs when a prison official causes injury as a result of at least his or her deliberate indifference to a prisoner’s serious medical needs. Id. Mere delay of medical treatment or surgery, “without more, is insufficient to state a claim of deliberate medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). However, delays may be actionable if a plaintiff’s condition predictably worsened during the delay or became more difficult to treat due to the delay. See Perez v. Brady, No. 2:19-cv-04309-VBF- KES, 2020 WL 2441434, at *5 (C.D. Cal. Mar. 16, 2020), report and recommendation adopted, No. 2:19-cv-04309-VBF-KES, 2020 WL 2395210 (C.D. Cal. May 12, 2020). Plaintiff alleges that Defendants Dr. Obendena and Williams knew of Plaintiff’s need for jaw surgery, that there was a delay in his treatment, and, given the condition of his jaw, the delay likely would cause his condition to worsen or become more difficult to treat. IV. Conclusion and Recommendation Based on the above, the Court finds that Plaintiff's first amended complaint states a cognizable medical indifference claim against Defendants Dr. Obendena and Williams. Plaintiff fails to state any other cognizable claims. Despite being provided with the relevant pleading and legal standards, Plaintiff has been unable to cure the remaining deficiencies and further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a district judge to this action. Further, IT IS HEREBY RECOMMENDED as follows: 1. This action proceed on Plaintiff’s first amended complaint, filed on April 10, 2020, on Plaintiff’s medical deliberate indifference claim against Defendants Dr. Obendena and Williams; and 2. All other federal claims and all other defendants be dismissed from this action based on Plaintiff’s failure to state claims upon which relief may be granted; and These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendation, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Dated: September 25, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE