Rolando Medrano v. Rogelio Ortega

• Court: District Court, S.D. California
• Decided: October 31, 2019
• Docket: 3:19-cv-00423
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8

9 ROLANDO MEDRANO, Case No.: 19-cv-423-AJB-MDD 10

Plaintiff, 11 REPORT AND v. RECOMMENDATION GRANTING 12 DEFENDANT’S MOTION TO ROGELIO ORTEGA, et al., 13 DISMISS Defendants. 14 [ECF No. 15] 15 16 This Report and Recommendation is submitted to United States 17 District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and 18 Civil Local Rule 72.1(c) of the United States District Court for the Southern 19 District of California. 20 For the reasons set forth herein, the Court RECOMMENDS 21 Defendant’s Motion to Dismiss be GRANTED and Plaintiff’s Complaint be 22 DISMISSED WITH PREJUDICE. 23 I. PROCEDURAL HISTORY 24 Plaintiff Rolando Medrano (“Plaintiff”), a state prisoner proceeding pro 25 se and in forma pauperis, constructively filed a complaint pursuant to 42 26 U.S.C. § 1983 on February 4, 2019, in the Central District of California. 1 transferred to this Court. (ECF Nos. 6-9). On May 21, 2019, the District 2 Judge screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 3 § 1915A(b). (ECF No. 12). The only claims to survive screening were the 4 inadequate medical care claims against Defendant Rogelio Ortega, Staff 5 Physician (“Defendant”). (Id.). Accordingly, Defendants H. Patel and S. 6 Gates were dismissed. (Id.). 7 On August 13, 2019, Defendant moved to dismiss Plaintiff’s complaint 8 for failure to state a claim pursuant to Federal Rule of Civil Procedure 9 12(b)(6). (ECF No. 15). Defendant contends Plaintiff failed to timely file this 10 action and failed to sufficiently allege Defendant was deliberately indifferent 11 to his serious medical needs. (Id.). Plaintiff did not file an opposition. (See 12 Docket). 13 II. FACTUAL BACKGROUND 14 These facts are taken from Plaintiff’s Complaint and are limited to the 15 claims relating to Defendant. They are not to be construed as findings of fact 16 by the Court. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740 17 (1976) (noting that the Court must accept as true allegations set forth in the 18 complaint when ruling on a motion to dismiss). 19 On May 29, 2016, while housed at Centinela State Prison (“CEN”), 20 Plaintiff tore two ligaments in his right ankle. (ECF No. 1 at 3).1 On May 13, 21 2016, Defendant ordered an X-ray and prescribed Tylenol 3 for three days. 22 (Id.). On June 13, 2016, Plaintiff requested Defendant renew his Tylenol 3 23 prescription. (Id.). Defendant did not renew the prescription and instead 24 prescribed “less effective medication” despite Plaintiff’s complaints of 25

26 1 All pincite page references refer to the automatically generated ECF pagination, not the 1 “significant and immobilizing pain.” (Id.). 2 On August 2, 2016, Plaintiff was referred to an orthopedic surgeon, who 3 ordered an MRI. (Id. at 4). On August 10, 2016, Defendant re-prescribed 4 Tylenol 3. (Id.). On August 19, 2016, Plaintiff was given an MRI. (Id.). On 5 September 6, 2016, Defendant decreased Plaintiff’s daily Tylenol 3 dosage 6 and ordered his pain medication be discontinued on September 20, 2016. 7 (Id.). 8 On September 27, 2016, Plaintiff’s orthopedic surgeon confirmed a 9 ligament tear to Plaintiff’s ankle. (Id. at 5). On October 6, 2016, Defendant 10 refused to prescribe stronger pain management medication despite Plaintiff’s 11 complaints of “uncontrolled pain to his right ankle.” (Id.). As a result, 12 Plaintiff “endure[d] months” of continued pain. (Id.). On November 1, 2016, 13 Defendant Ortega refused to prescribe stronger pain medication, even though 14 Plaintiff had the same amount of pain and walked with a cane. (Id. at 6). 15 On November 8, 2016, Plaintiff’s orthopedic surgeon noted a “popping 16 and clicking” in his right ankle, Plaintiff’s use of an aircast, and reports of 17 constant sharp pain. (Id. at 7). The orthopedic surgeon recommended “right 18 ankle arthroscopy and repair of tibia fibula ligament,” and Tylenol 3 for pain 19 management. (Id.). On November 15, 2016, Defendant allegedly 20 “substituted his own judgment,” and failed to renew the Tylenol 3 21 prescription. (Id.). Thus, Plaintiff alleges Defendant was deliberately 22 indifferent to his serious medical needs. 23 III. LEGAL STANDARD 24 A motion to dismiss pursuant to Federal Rule of Civil Procedure 25 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 26 732 (9th Cir. 2001). “Under Federal Rule of Civil Procedure 8(a)(2), a 1 the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 2 (2009) (internal quotation marks omitted). The pleader must provide the 3 Court with “more than an unadorned, the-defendant-unlawfully-harmed-me 4 accusation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 5 (2007)). “Threadbare recitals of the elements of a cause of action, supported 6 by mere conclusory statements, do not suffice.” Id. The court must assume 7 the truth of the facts which are presented and construe all inferences from 8 them in the light most favorable to the non-moving party. Thompson v. 9 Davis, 295 F.3d 890, 895 (9th Cir. 2002). 10 A pro se pleading is construed liberally on a defendant’s motion to 11 dismiss for failure to state a claim. Id. (citing Ortez v. Washington Cty., 88 12 F.3d 804, 807 (9th Cir. 1996)). The pro se pleader must still set out facts in 13 his complaint that bring his claims “across the line from conceivable to 14 plausible.” Twombly, 550 U.S. at 570. 15 A pro se litigant is entitled to notice of deficiencies in the complaint and 16 an opportunity to amend, unless the complaint’s deficiencies cannot be cured 17 by amendment. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Thus, 18 the court is not required to accept as true allegations that are “supported by 19 mere conclusory statements.” Iqbal, 556 U.S. at 678. Furthermore, the court 20 “may not supply essential elements of the claim that were not initially pled.” 21 Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 22 1982). 23 IV. DISCUSSION 24 Defendant contends Plaintiff’s claim is barred by the statute of 25 limitations. (ECF No. 15 at 5-6). Alternatively, Defendant argues Plaintiff 26 failed to sufficiently allege Defendant was deliberately indifferent to his 1 A. Statute of Limitations 2 “For actions under 42 U.S.C. § 1983, courts apply the forum state’s 3 statute of limitations for personal injury actions, along with the forum state’s 4 law regarding tolling, including equitable tolling, except to the extent any of 5 these laws is inconsistent with federal law.” Jones v. Blanas, 393 F.3d 918, 6 927 (9th Cir. 2004). However, federal law determines when a civil rights 7 action accrues. Lukovsky v. City & Cty. of San Francisco, 535 F.3d 1044, 8 1048 (9th Cir. 2008). “[U]nder federal law, a claim accrues ‘when the plaintiff 9 knows or has reason to know of the injury which is the basis of the action.’” 10 Id. (quoting Olsen v. Idaho State Bd. Of Med., 363 F.3d 916, 926 (9th Cir. 11 2004)). California’s statute of limitations for personal injury claims is two 12 years. Cal. Civ. Proc. Code § 335.1. The statute of limitations is tolled for 13 two years if the plaintiff was imprisoned for a term less than for life at the 14 time of the accrual. See Cal. Civ. Proc. Code § 352.1(a). A prisoner serving a 15 life term is not eligible for tolling. Id. 16 “A claim may be dismissed as untimely pursuant to a 12(b)(6) motion 17 ‘only when the running of the statute [of limitations] is apparent on the face 18 of the complaint.’” United States ex rel. Air Controls Techs., Inc. v. Pre Con 19 Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (citation omitted). “Where 20 the facts and dates alleged in a complaint demonstrate that the complaint is 21 barred by the statute of limitations, a Federal Rule of Civil Procedure 22 12(b)(6) motion should be granted.” Ritchie v. United States, 210 F. Supp. 2d 23 1120, 1123 (N.D. Cal. 2002). Conversely, ‘“[a] complaint cannot be dismissed 24 unless it appears beyond doubt that the plaintiff can prove no set of facts that 25 would establish the timeliness of the claim.’” Von Saher v. Norton Simon 26 Museum of Art, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Supermail Cargo, 1 Plaintiff’s request for a renewal of his Tylenol 3 prescription was first 2 denied by Defendant on June 13, 2016. (ECF No. 1 at 1, 3). As a result, the 3 earliest accrual date alleged is June 13, 2016. See Lukovksy, 535 F.3d at 4 1048. Plaintiff constructively filed his complaint on February 4, 2019 – 2 5 years, 7 months, and 22 days after the earliest alleged accrual date. (See 6 ECF No. 1 at 1). However, Plaintiff does not allege whether he is sentenced 7 to life or a shorter term. (See id.). Accordingly, the court cannot determine 8 whether Plaintiff is entitled to a two-year tolling of the statute of limitations. 9 See Cal. Civ. Proc. Code § 352.1(a). Because it is not apparent that Plaintiff’s 10 claims are barred by the statute of limitations, dismissal of the complaint is 11 inappropriate on this ground. See Von Saher, 592 F.3d at 969. 12 B. Failure to State a Claim for Deliberate Indifference 13 The Eighth Amendment is violated when prison officials demonstrate 14 “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 15 U.S. 97, 104 (1976). The deliberate indifference test has both an objective 16 and subjective requirement. See Farmer v. Brennan, 511 U.S. 825, 838 17 (1994). The subjective prong requires “more than ordinary lack of due care 18 for the prisoner’s interests or safety.” Id. at 835 (internal quotation marks 19 and citation omitted). It requires a showing that the defendant acted with 20 “deliberate indifference” to “an excessive risk to inmate health and safety.” 21 Farmer, 511 U.S. at 837. 22 Here, Plaintiff alleges Defendant was deliberately indifferent to his 23 serious medical needs by refusing to prescribe Tylenol 3. (ECF No. 1). 24 Specifically, he contends Defendant was deliberately indifferent by failing to 25 renew the prescription when Plaintiff complained of pain and when his 26 orthopedic surgeon recommended Tylenol 3. (See id.). 1 Plaintiff or between Defendant and Plaintiff’s orthopedic surgeon. However, 2 "[a] difference of opinion between a physician and the prisoner—or between 3 medical professionals—concerning what medical care is appropriate does not 4 amount to deliberate indifference." Colwell v. Bannister, 763 F.3d 1060, 1068 5 (9th Cir. 2014) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012)). 6 It is not enough that the plaintiff merely disagrees with the course of 7 treatment provided. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 8 Rather, the plaintiff must show both “that the course of treatment the doctors 9 chose was medically unacceptable under the circumstances” and “that they 10 chose this course in conscious disregard of an excessive risk to plaintiff’s 11 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 12 Here, Defendant re-prescribed “Tylenol 3” in one instance and 13 prescribed alternative, albeit allegedly less effective, medication when 14 Plaintiff was not prescribed Tylenol 3. (See ECF No. 1 at 3-5). Thus, 15 Defendant was not consciously disregarding an excessive risk to Plaintiff’s 16 health. See Jackson, 90 F.3d at 332. 17 Accordingly, Plaintiff insufficiently pleads a claim for deliberate 18 indifference to serious medical needs and the Court RECOMMENDS 19 Defendant’s motion be GRANTED and the Complaint be dismissed WITH 20 PREJUDICE because Plaintiff cannot cure the deficiencies of the complaint 21 under these circumstances.2 22 23 2 Also, the Ninth Circuit has held that a district court may grant an unopposed motion to 24 dismiss where a local rule permits, but does not require it to do so. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, Civil Local Rule 7.1(f)(3)(c) provides, “[i]f 25 an opposing party fails to file the papers in the manner required by [the court], that failure may constitute a consent to the granting of a motion . . . by the court.” S.D. Cal. 26 Civ. L.R. 7.1(f)(3)(c). Here, Plaintiff’s opposition was due on September 20, 2019. (ECF No. 16). To date, Plaintiff has not filed an opposition. (See Docket). As such, the Court 1 V. CONCLUSION 2 Based on the foregoing, the court RECOMMENDS Defendant’s Motion 3 ||to Dismiss be GRANTED and Plaintiff's Complaint be DISMISSED WITH 4 || PREJUDICE. See Lopez, 203 F.3d at 1127 (noting that a pro se litigant 5 ||should be granted leave to amend unless the complaint’s deficiencies cannot || be cured by amendment). 7 This Report and Recommendation will be submitted to the United 8 States District Judge assigned to this case, pursuant to the provision of 28 9 U.S.C. § 686(b)(1). Any party may file written objections with the court and 10 ||Serve a copy on all parties by November 22, 2019. The document shall be 11 ||}captioned “Objections to Report and Recommendation.” Any reply to the 12 ||objections shall be served and filed by November 29, 2019. 13 The parties are advised that failure to file an objection within the 14 specified time may waive the rights to raise those objections on appeal of the 15 || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 16 IT IS SO ORDERED. Dated: October 31, 2019 Mitel s [ Hon. Mitchell D. Dembin 19 United States Magistrate Judge 20 21 22 23 24 25 26 27