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Borden v. Ward

United States District Court, D. Oregon

May 11, 2018

DEPUTY WARD, B. MAUITY, et. al, Defendants.


          Michael H. Simon, District Judge.

         On February 28, 2018, Plaintiff pro se Steven Borden (“Plaintiff”) filed an amended complaint against Defendants Deputy Ward and B. Mauity (jointly, “Defendants”). Plaintiff asserts a claim under 42 U.S.C. § 1983 for violations of Plaintiff's Eighth Amendment rights arising from Plaintiff's medical care during a 60-day period of incarceration at Josephine County Jail (“JCJ”). Defendant Mauity has not yet been served. On April 5, 2018, Defendant Ward filed a motion to dismiss for failure to state a claim. For the reasons given below, Defendant's motion is granted.


         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). Courts may also consider “exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th cir. 2007). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.'” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).


         The following facts are drawn from Plaintiff's amended complaint and the exhibits attached to that complaint. On August 12, 2016, Plaintiff jumped over a fence in residential neighborhood of Eugene, Oregon and injured his right foot. After a neighbor called 911, an ambulance took Plaintiff to Sacred Heart Hospital in Springfield, Oregon. At Sacred Heart, x-rays were taken of Plaintiff's right foot, and he was told that his calcaneus (heel bone) was broken in three places. Plaintiff's foot was set in a plaster splint, and he was told to make an appointment to see an orthopedist within three to five days to determine whether surgery or resetting of the foot was necessary. The discharge instructions noted that “[i]f surgery is not required, [Plaintiff] will probably be treated with a short-leg cast for 6 to 12 weeks, ” followed by physical therapy. Plaintiff was also given crutches, and his discharge instructions recommended that he take ibuprofen or Tylenol for pain, and keep his foot elevated and iced.

         Upon his discharge from Sacred Heart, Plaintiff contacted his parole officer in Grants Pass, Oregon, who directed Plaintiff to return to Josephine County, the county of his commitment. Plaintiff was not able to purchase a bus ticket from Eugene to Josephine County until August 16, 2016. Upon his arrival in Josephine County, Plaintiff called 911 and was taken by the local police to JCJ, where he was held for 60 days for having violated his parole by leaving a work program in Eugene.

         Defendant Deputy Ward was present for Plaintiff's intake into JCJ. Plaintiff gave Deputy Ward his discharge paperwork from Sacred Heart, which included the recommendation that Plaintiff see an orthopedist, and requested that an appointment be made with a specialist. Plaintiff was placed in administrative segregation so that he could keep his crutches, but an orthopedist appointment was not made. On August 18, 2016, Defendant B. Mauity, an EMT and medical contractor with JCJ, requested Plaintiff's medical records from Sacred Heart, including x-rays, a treatment plan and any prescriptions. On August 20th, Plaintiff saw Mauity for a medical screening. Mauity noted Plaintiff's broken foot, writing that Plaintiff experienced intermittent pain in his right foot, but that none was present at the moment. Mauity recommended that Plaintiff be given an extra mattress and two extra blankets to help elevate his feet, and prescribed Plaintiff 600 milligrams of ibuprofen twice per day. Plaintiff's treatment plan as of August 20, 2016 was a “soft case” cast, elevation, and ibuprofen. Plaintiff continued to request additional medical treatment and an orthopedist appointment at meal times, but was ignored. On September 15, 2016, Plaintiff submitted a medical request through the medical kiosk, expressing concern that he had not yet been given a permanent cast or seen an orthopedist to be evaluated for surgery. Plaintiff wrote that he did not want to “heal wrong.” Plaintiff was seen by medical providers two days later, on September 17, when x-rays were taken and Plaintiff's splint was replaced.

         Plaintiff was released from JCJ on October 18, 2016 and visited a podiatrist, Dr. Castle, in Grants Pass on October 21, 2018. Plaintiff alleges that Dr. Castle informed Plaintiff that “he had not healed” and his bone was displaced. The exam notes from Plaintiff's visit, which Plaintiff has attached to his complaint as “Exhibit 4, ” however, note that Plaintiff's heel “overall seems to be doing well.” Plaintiff had little pain when Dr. Castle manipulated his foot, and what restrictions in range of motion and swelling that Plaintiff demonstrated, Dr. Castle attributed to guarding and nonuse. Based on Plaintiff's earlier x-rays from JCJ, Dr. Castle wrote that Plaintiff's fracture had resulted in “just mild displacement” and, though Dr. Castle did not have additional x-rays to evaluate for “medial or lateral displacement, ” the fracture “look[ed] to be healing well . . . at this time.” Dr. Castle also noted that Plaintiff's splint was “quite disheveled and he has clearly been bearing some weight on the foot.” For that reason, Dr. Castle gave Plaintiff a boot that would allow Plaintiff to bear weight on the foot so long as he avoided impact activities. Dr. Castle further wrote that Plaintiff “will likely develop some posttraumatic arthritic changes and may require surgery down the road.” Plaintiff maintains that his foot is still injured and he walks with a limp.


         The treatment a prisoner receives in prison and the conditions of his confinement are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993).

         As the Supreme Court has explained,

The [Eighth] Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take ...

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