1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SENARBLE CAMPBELL, CDCR #H- Case No.: 22cv1204-CAB-NLS 90841, 12 ORDER DENYING MOTION TO Plaintiff, 13 DISMISS [Doc. No. 10] v. 14 R. FALCON; S. VALENZULA; N. 15 GARSILASO, 16 Defendants. 17

18 Pending before this Court is the motion to dismiss filed by Defendants R. Falcon, 19 S. Valenzuela and N. Garsilaso (“Defendants”). [Doc. No. 10.] Although this motion 20 was referred to United States Magistrate Judge Nita L. Stormes pursuant to

636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor 22 oral argument is necessary for the disposition of this matter. See S.D. Cal. Civ.L.R. 23 72.1(d). For the reasons set forth below, the motion is DENIED. 24 BACKGROUND 25 On August 15, 2022, Plaintiff Senarble Campbell (“Plaintiff”), an inmate currently 26 incarcerated in the California Health Care Facility (“CHCF”), and proceeding pro se, 27 filed a civil rights complaint pursuant to

. [Doc. No. 1.] Plaintiff claims 28 1 Correctional Officers at Richard J. Donovan Correctional Facility (“RJD”) used 2 excessive force against him in violation of the Eighth Amendment.

. Plaintiff 3 also alleges Defendants acted with deliberate indifference to his serious medical needs in 4 violation of the Eighth Amendment.

. Plaintiff seeks compensatory and 5 punitive damages.

. 6 On August 15, 2022, Plaintiff also filed a motion to proceed in forma pauperis. 7 [Doc. No. 2.] On August 29, 2022, this Court issued an order granting the motion to 8 proceed in forma pauperis and directing the U.S. Marshall to effect service of the 9 complaint and summons pursuant to

(d) and Fed.R.Civ.P. 4 (c)(3). [Doc. 10 No. 3.] 11 On November 21, 2022, Defendants filed a motion to dismiss Plaintiff’s Eighth 12 Amendment deliberate indifference claim on the grounds that it fails to state a claim upon 13 which relief can be granted. [Doc. No. 10.] On December 30, 2022, Plaintiff filed an 14 opposition. [Doc. No. 14.] On January 10, 2023, Defendants filed a reply. [Doc. No. 15 15.] 16 FACTUAL ALLEGATIONS OF THE COMPLAINT 17 Plaintiff is a “participant in the California Department of Corrections and 18 Rehabilitation (“CDCR”) Mental Health Services Delivery System (“MHSDS”) at the 19 Enhanced Outpatient (“EOP”) level of care.” [Doc. No. 1 at 3.] Plaintiff has a “mobility 20 disability” and uses a cane, as well as a walker.

He also has a “waist-chain chrono” 21 which means Plaintiff cannot be handcuffed behind his back.

These accommodations 22 are due to an injury that occurred in 2005 which resulted in having a rod placed in his left 23 femur. See

Plaintiff has also been diagnosed with exhibitionist disorder in 2005. See 24

25 Plaintiff admits that he engaged in exhibitionist behavior on January 13, 2020. See 26

. Approximately thirty (30) minutes later, Defendants Falcon, Valenzuela, and 27 Garsilaso came to Plaintiff’s cells and told him to “step outside.”

Plaintiff alleges 28 Falcon and Garsilaso entered his cell and he could “hear property being thrown around.” 1

. Plaintiff felt “angry and panicked” and told Falcon that he was suicidal.

2 Falcon responded by telling Plaintiff to “cuff up” in the back.

. Plaintiff tried to 3 tell Falcon that he could not be handcuffed behind his back due to his disability but 4 Falcon “grabbed [Plaintiff’s] right hand” and forced him to the ground causing Plaintiff 5 to lose consciousness.

When Plaintiff regained consciousness, he was “being punched 6 and kneed” by Falcon, Valenzuela, and Garsilaso in the “head, face, ribs, and back.”

7 Plaintiff claims he was not resisting.

Plaintiff was “forcefully pulled to [his] feet” and 8 “struggled to walk without [his] accommodating disability devices.”

Plaintiff was 9 “limping and struggling not to fall over while in pain” as he was escorted by Defendants 10 off the yard.

11 LEGAL STANDARD 12 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 13 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A 14 court may dismiss “based on the lack of cognizable legal theory or the absence of 15 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 16 Dep’t,

(9th Cir. 1990). 17 Although a complaint need contain only “a short and plain statement of the claim 18 showing that the pleader is entitled to relief,” (Fed.R.Civ.P. 8(a)(2)), in order to survive a 19 motion to dismiss this short and plain statement “must contain sufficient factual matter … 20 to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,

, 21 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). A 22 complaint must include something more than “an unadorned, the-defendant-unlawfully- 23 harmed-me accusation” or “ ‘labels and conclusions’ or ‘a formulaic recitation of the 24 elements of a cause of action.’ ”

(quoting Twombly,

). Determining 25 whether a complaint will survive a motion to dismiss for failure to state a claim is a 26 “context-specific task that requires the reviewing court to draw on its judicial experience 27 and common sense.”

. Ultimately, the inquiry focuses on the interplay between 28 1 the factual allegations of the complaint and the dispositive issues of law in the action. See 2 Hishon v. King & Spalding,

(1984). 3 In making this context-specific evaluation, this court must construe the complaint 4 in the light most favorable to the plaintiff and accept as true the factual allegations of the 5 complaint. Erickson v. Pardus,

, 93–94 (2007). This rule does not apply to “ 6 ‘a legal conclusion couched as a factual allegation,’ ” Papasan v. Allain,

, 7 286 (1986) (quoted in Twombly,

), nor to “allegations that contradict 8 matters properly subject to judicial notice” or to material attached to or incorporated by 9 reference into the complaint. Sprewell v. Golden State Warriors,

, 988–89 10 (9th Cir. 2001). 11 Finally, leave to amend may be denied if the court determines that “allegation[s] of 12 other facts consistent with the challenged pleading could not possibly cure the 13 deficiency.” Schreiber Distributing Co.v. Serv-Well Furniture Co., Inc.,

, 14 1401(9th Cir. 1986). 15 DISCUSSION 16 To maintain an Eighth Amendment claim based on prison medical treatment under 17

, an inmate must show “deliberate indifference to serious medical 18 needs.” Jett v. Penner,

(9th Cir. 2006) (quoting Estelle v. Gamble, 19

(1976)). “[T]here is a two-pronged test for evaluating a claim for 20 deliberate indifference to a serious medical need: First, the plaintiff must show a serious 21 medical need by demonstrating that failure to treat a prisoner’s condition could result in 22 further significant injury or the unnecessary and wanton infliction of pain. Second, the 23 plaintiff must show the defendant’s response to the need was deliberately indifferent. 24 This second prong ... is satisfied by showing (a) a purposeful act or failure to respond to a 25 prisoner’s pain or possible medical need and (b) harm caused by the 26 indifference.[”]Akhtar v. Mesa,

(9th Cir. 2012) (quoting Jett, 439 27 F.3d at 1096). 28 1 A prison official exhibits deliberate indifference when he knows of and disregards 2 a substantial risk of serious harm to inmate health. Farmer v. Brennan,

, 3 837 (1970). The official must both know of “facts from which the inference could be 4 drawn” that an excessive risk of harm exists, and he must actually draw that inference.

5 “A determination of ‘deliberate indifference’ involves an examination of two elements: 6 the seriousness of the prisoner’s medical need and the nature of the defendant’s response 7 to that need.” See McGuckin v. Smith,

(9th Cir. 1992), overruled on 8 other grounds by WMX Techs., Inc. v. Miller,

(9th Cir. 1997) (en banc). 9 “Deliberate indifference is a high legal standard.” Toguchi v. Chung,

, 10 1060 (9th Cir. 2004). Even gross negligence is insufficient to establish deliberate 11 indifference to serious medical needs. See Wood v. Housewright,

, 1334 12 (9th Cir. 1990). “A defendant must purposefully ignore or fail to respond to a prisoner’s 13 pain or possible medical need in order for deliberate indifference to be established.” 14 McGuckin,

. Thus, neither an inadvertent failure to provide adequate 15 medical care, nor mere negligence or medical malpractice, nor a mere delay in medical 16 care (without more), nor a difference of opinion over proper medical treatment, is 17 sufficient to constitute an Eighth Amendment violation. See Estelle, 429 U.S. at 105–06; 18 Sanchez v. Vild,

(9th Cir. 1989); Shapley v. Nev. Bd. of State Prison 19 Comm’rs,

(9th Cir. 1984). 20 Defendants argue the Eighth Amendment claim fails to establish the subjective 21 prong because it fails to identify the correctional officer who handcuffed Plaintiff behind 22 his back. [Doc. No. 10 at 8-9.] Similarly, Defendants argue the claim fails to identify 23 which correctional officers walked Plaintiff out of the building. [Doc. No. 10 at 9.] 24 However, the Complaint sufficiently alleges that the named Defendants all significantly 25 participated in the handcuffing episode and all escorted him out of the building. [See 26 Compl. ¶¶21 – 28, 37-42.] While Plaintiff also references other unnamed officers 27 coming into the building, this does not contradict the clear notice being given to the 28 named Defendants that Plaintiff alleges they were intricately involved in the handcuffing 1 || episode and in escorting him out of the building. Whether Plaintiff can ultimately prove 2 || the subjective component as to each named defendant is not a matter for consideration on 3 ||a motion to dismiss. Accordingly, the Complaint sufficiently alleges an Eighth 4 || Amendment claim as to all of the Defendants. 5 CONCLUSION 6 For the reasons set forth above, the motion to dismiss the Eighth Amendment 7 |{claim is DENIED. Defendants shall answer the Complaint by May 2, 2023. 8 IT IS SO ORDERED. 9 ||Dated: April 11, 2023 € ZL 10 Hon. Cathy Ann Bencivengo 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28