Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 1 of 8

1 EDMUND G. BROWN JR. Attorney General of the State of California 2 KRISTIN G. HOGUE Supervising Deputy Attorney General 3 DAVID F. TAGLIENTI, State Bar No. 131622 Deputy Attorney General 110 West A Street, Suite 1100 4 San Diego, CA 92101 P.O. Box 85266 5 San Diego, CA 92186-5266 Telephone: (619) 645-2015 6 Fax: (619) 645-2012 Email: [email protected] 7 8 Attorneys for Defendants E. Orduno and S. Ortiz 9 10 11 Case No.: 08-cv-00078 H (AJB) 12 13 14 15 16 17 18 Defendants. 19 20 21 22 INTRODUCTION By his first amended complaint (FAC)1/, Plaintiff, a state inmate in pro se, alleges a v. JAMES E. TILTON; THE SECRETARY FOR C.D.C.R.; L.E. SCRIBER, THE WARDEN; M. LEVIN, CMO; K. BALL, M.D.; F. LO, M.D.; C. GRAY, SRN; M. CORREA, SRN; E. ORDUNO, RN; S. ORTIZ, RN; AND DOES 1 THROUGH 15, INCLUSIVE, JORGE GUADARRAMA, Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6) Date: Time: Courtroom: October 20, 2008 10:30 a.m. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Honorable Marilyn L. Huff

23 § 1983 deliberate indifference claim under the Eighth Amendment against, among others, 24 Defendants S. Ortiz (Ortiz) and E. Orduno (Orduno), stemming from Defendants' alleged 25 harassment of Plaintiff relative to the medical care he received for his hands in or about 2006, at 26 1. In February 2008, the Court dismissed sua sponte Plaintiff's original complaint with leave to amend. On July 8, 2008, the Court dismissed sua sponte the First Amended Complaint as to a 28 number of defendants, but permitted the action to proceed as to others, including Defendants Ortiz and Orduno. 27
08-cv-00078 H (AJB)

1

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 2 of 8

1 Calipatria State Prison (Calipatria).2/ Specifically, Plaintiff complains that Defendants Ortiz and 2 Orduno, both of whom are employed as registered nurses at Calipatria, harassed him regarding 3 the schedule for wearing hand splints following one of many operations on his hands. He also 4 alleges that Defendants failed to give him new edema gloves and a new hand splint, forcing him 5 to wear forearm sleeves that were old and deteriorated from daily wear and a hand splint that 6 was fractured and broken. Plaintiff further alleges that Ortiz and Orduno retaliated against him 7 for filing a medical grievance in or about April 2006, presumably documenting Defendants' 8 alleged harassment. (See FAC ¶¶ 22, 25.)3/ 9 As set forth below, because Plaintiff has not alleged facts demonstrating that the

10 Defendants acted with deliberate indifference to his serious medical needs within the meaning of 11 the Eighth Amendment, that claim necessarily fails. Further, to the extent Plaintiff seeks to 12 allege a due process violation under the Fourteenth Amendment, the claim fails because Plaintiff 13 has not alleged facts demonstrating that these moving Defendants engaged in conduct that 14 "shocks the conscience." Moreover, Plaintiff's retaliation claim under the First Amendment fails 15 inasmuch as verbal harassment cannot form the basis for a § 1983 claim. Accordingly, the 16 motion should be granted and the action dismissed with prejudice as to these moving 17 Defendants. 18 19 STATEMENT OF FACTS After Plaintiff had one of many operations on his hands at the UCSD Medical Center,

20 he was returned to Calipatria and housed in the Central Infirmary, Cell No. 7. (FAC ¶¶ 19-20.) 21 / / / 22 / / / 23 / / / 24 25 2. Plaintiff also alleges in conclusory fashion a retaliation claim under the First Amendment 26 and a due process claim under the Fourteenth Amendment, as to these moving Defendants, that appears to be based on their continued harassment of Plaintiff after he filed a medical grievance in 27 or about April 2006, apparently complaining about the misconduct. (See FAC ¶ 41.) 28 3. Although Plaintiff makes reference to an "Exhibit A" in the FAC (see ¶ 19), there is no such exhibit attached to the copy of the FAC received by these moving Defendants.
08-cv-00078 H (AJB)

2

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 3 of 8

1 Thereafter, from about November 2, 2005, through March 2006, Orduno and Ortiz rudely and 2 maliciously approached and/or harassed Plaintiff about not wearing his hand splints.4/ (FAC 3 ¶¶ 21-22.) On or about April 7, 2006, apparently because of Defendants' harassing behavior, 4 Plaintiff filed a medical grievance complaining about the harassment and mistreatment. 5 (FAC ¶ 25.) Despite this filing, Ortiz and Orduno continued to harass Plaintiff about when he 6 was supposed to wear his hand splints. They also "prolonged the ability to accommodate and /or 7 furnish" Plaintiff with new edema gloves and forearm sleeves, requiring him to wear gloves and 8 sleeves that were deteriorated and old and a hand splint that was fractured.5/ (FAC ¶ 25(B).) 9 Ortiz and Orduno also failed to furnish Plaintiff with new hand splints, leaving him to wear hand 10 splints that had become unusable due to fractures or breakage. (FAC ¶ 25.) 11 12 13 A. ARGUMENT STANDARD ON MOTION TO DISMISS

In ruling on a motion to dismiss under Fed. R. Civ. P. 12(b), the court accepts as true

14 the facts alleged in the complaint. Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir. 15 1986). While allegations of material fact in the complaint are taken as true and construed in the 16 light most favorable to party opposing the motion, conclusory allegations of law and 17 unwarranted inferences are insufficient to overcome a motion to dismiss. Associated General 18 Contractors of America v. Metropolitan Water Dist. of Southern California, 159 F.3d 1178, 1181 19 (9th Cir. 1998). Dismissal is appropriate where there is either a "lack of a cognizable legal 20 theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. 21 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Furthermore, where, as here, the 22 plaintiff is in pro se, the court must construe the pleadings liberally and afford the plaintiff the 23 benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 24 1988). In giving the complaint a liberal interpretation, however, the court may not "supply 25 4. Interestingly, the words "rudely," "maliciously" and "harassed" in this paragraph are preceded by the bracketed phrase "did not." It is assumed here Plaintiff did not intend the bracketed 27 phrase. 26 28 5. Plaintiff also makes reference to an "Exhibit G," but there is no such exhibit attached to the FAC received by these moving Defendants.
08-cv-00078 H (AJB)

3

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 4 of 8

1 essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the 2 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 4 5 6 7 8 B. THE MERITS I PLAINTIFF'S EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIM SHOULD BE DISMISSED AS TO THESE MOVING DEFENDANTS BECAUSE NEITHER DEFENDANT ACTED WITH DELIBERATE INDIFFERENCE TO PLAINTIFF'S SERIOUS MEDICAL NEEDS ON THE FACTS ALLEGED To prove a violation of the proscription against cruel and unusual punishment under

9 the Eighth Amendment to the United States Constitution, an inmate must demonstrate that the 10 defendants acted with a deliberate indifference to his serious medical needs. Estelle v. Gamble, 11 429 U.S. 97, 103-04 (1976). "It is only such indifference that can offend 08-cv-00078 H (AJB)

4

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 5 of 8

1 outside medical care additional and supplemental to the care provided by prison medical staff. 2 See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir. 1986). Furthermore, while deliberate 3 indifference may appear when prison officials deny, delay or intentionally interfere with medical 4 treatment, Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir. 1988), where the claim alleges a delay 5 in treatment, the inmate must demonstrate that the delay was harmful. Wood, 900 F.2d at 1335; 6 see also Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir. 1981); Estelle, 429 U.S. at 107; cf. 7 Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985) ("mere delay 8 of surgery, without more, is insufficient to state a claim of deliberate medical indifference . . . ."). 9 Here, Plaintiff has not alleged facts demonstrating Defendants Orduno and/or Ortiz

10 acted with deliberate indifference to his serious medical needs within the meaning of the Eighth 11 Amendment. Although Plaintiff alleges that Defendants maliciously harassed him regarding 12 when he was to wear his hand splints following one of many operations on his hands, any such 13 verbal harassment cannot form the basis of a claim under the Eighth Amendment, even if the 14 retaliatory behavior was in response to a medical grievance Plaintiff filed in or about April 2006. 15 It has long been settled that verbal harassment and abuse do not state a claim under § 1983. See 16 Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1092 (9th 17 Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998) (disrespectful and assaultive comments by 18 prison guard not enough to implicate Eighth Amendment); Oltarzewski v. Ruggiero, 830 F.2d 19 136, 139 (9th Cir. 1987) (directing vulgar language at prisoner does not state constitutional 20 claim); Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) ("mere words, without more, do not 21 invade a federally protected right"). In any event, because Defendants were harassing him about 22 wearing his gloves, sleeves and hand splints, albeit to Plaintiff's chagrin, Plaintiff cannot 23 establish that either Defendant "acted with a culpable state of mind," Wilson, 501 U.S. at 302, or 24 purposefully ignored or failed to respond to Plaintiff's pain or medical need. McGuckin, 974 25 F.2d at 1060. 26 Moreover, the failure to provide Plaintiff new edema gloves and a new hand splint,

27 requiring him to wear forearm sleeves that were old and deteriorated and a hand splint that was 28 fractured, is at most a mere difference of medical opinion between an inmate and medical staff
08-cv-00078 H (AJB)

5

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 6 of 8

1 that, even if true, does not rise to the level of an Eighth Amendment violation. See Franklin, 662 2 F.2d at 1344. Thus, Plaintiff's Eighth Amendment claim must be dismissed with prejudice to 3 moving Defendants Ortiz and Orduno. 4 5 6 7 8 The Fourteenth Amendment "was intended to prevent government from abusing [its] II PLAINTIFF'S PURPORTED FOURTEENTH AMENDMENT DUE PROCESS CLAIM NECESSARILY FAILS BECAUSE NEITHER MOVING DEFENDANT ACTED IN A MANNER THAT "SHOCKS THE CONSCIENCE"

9 power, or employing it as an instrument of oppression." DeShaney v. Winnebago County Dept. 10 of Social Services (1989) 489 U.S. 189, 196; Daniels v. Williams (1986) 474 U.S. 327, 331 (the 11 goal of the due process clause is "<"[t]o secure the individual from the arbitrary exercise of the 12 powers of government"'" [internal citations omitted].) While protection against governmental 13 arbitrariness is at the core of due process, only the most egregious executive action can be said to 14 be "arbitrary in the constitutional sense." County of Sacramento v. Lewis (1998) 523 U.S. 833, 15 846 (quoting Collins v. City of Harker Heights, Tex. (1992) 503 U.S. 115, 129). The due process 16 clause "is simply not implicated by a negligent act of an official causing unintended loss of or 17 injury to life, liberty or property." Daniels, 474 U.S. at 328; Berman v. City of Daly City, 21 18 Cal.App.4th 276, 288 (1993). Instead, the cognizable level of executive abuse of power is that 19 conduct that "shocks the conscience" and violates the "decencies of civilized conduct." County 20 of Sacramento, 523 U.S. at 846 (quoting Rochin v. California (1952) 342 U.S. 165, 172-73) 21 ("[H]igh-speed chases with no intent to harm suspects physically or to worsen their legal plight 22 do not give rise to liability under the Fourteenth Amendment, redressible by an action under 23 § 1983"). 24 In this case, neither Orduno nor Ortiz, on the facts alleged, engaged in conduct that

25 "shocks the conscience" within the meaning of the Fourteenth Amendment's due process clause. 26 As set out above, mere allegations of verbal harassment are not cognizable under § 1983. 27 Freeman, 125 F.3d at 738. Therefore, Plaintiff's due process claim under the Fourteenth 28 Amendment must likewise be dismissed as to these moving Defendants.
08-cv-00078 H (AJB)

6

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 7 of 8

1 2 3 4

III PLAINTIFF'S RETALIATION CLAIM UNDER THE FIRST AMENDMENT SHOULD BE DISMISSED INASMUCH AS VERBAL HARASSMENT DOES NOT STATE A CLAIM UNDER § 1983 Deliberate retaliation by state actors against an individual's exercise of the First

5 Amendment is actionable under § 1983. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 6 (9th Cir. 1989); Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1996), cert. denied, 479 7 U.S. 1054 (1987). Recently, in Hartman v. Moore (2006) 547 U.S. 250, the High Court 8 observed, "Official reprisal for protected speech
13 showing that "by his actions [the defendant] deterred or chilled [the plaintiff's] political speech 14 and such deterrence was a substantial or motivating factor in [the defendant's] conduct." 15 Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994); Mendocino Environmental Center v. 16 Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999). This inquiry asks "whether an 17 official's acts would chill or silence a person of ordinary firmness from future First Amendment 18 activities." Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), vacated on other 19 grounds, 523 U.S. 1273 (1997) (internal quotation marks and citation omitted). Mere allegations 20 of verbal harassment are not cognizable under section 1983. Rutledge v. Arizona Bd. of Regents 21 (9th Cir. 1981) 660 F.2d 1345, 1353, aff'd on other grounds in Kush v. Rutledge (1983) 460 U.S. 22 719; Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (verbal harassment or abuse 23 does not rise to the level of a constitutional deprivation). 24 In this case, Plaintiff alleges simply "that Defendants have retaliated against Plaintiff

25 for filing his medical grievances, in violation of the First Amendment." (FAC ¶ 41.) Assuming 26 by this Plaintiff contends that Defendants continued to harass him even after he filed his medical 27 grievance in April 2006, the claim fails as a matter of law. Rutledge, 660 F.2d at 1353; 28 Oltarzewski, 830 F.2d at 139. In any event, a single vague and conclusory allegation of
08-cv-00078 H (AJB)

7

Case 3:08-cv-00078-H-AJB

Document 30-2

Filed 09/18/2008

Page 8 of 8

1 retaliation, standing alone, is insufficient to support a constitutional violation. See Ivey v. Board 2 of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory 3 allegations of official participation in civil rights violations are not sufficient to withstand a 4 motion to dismiss"). Thus, the First Amendment claim should be dismissed. 5 6 CONCLUSION For the foregoing reasons, Defendants Ortiz and Orduno respectfully request this Court

7 grant the motion to dismiss and dismiss the FAC with prejudice as to these moving Defendants. 8 Dated: September 18, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
08-cv-00078 H (AJB)
80272372.wpd

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California KRISTIN G. HOGUE Supervising Deputy Attorney General

s/David F. Taglienti DAVID F. TAGLIENTI Deputy Attorney General Attorneys for Defendants E. Orduno and S. Ortiz

8