United States District Court, D. Oregon
Michael H. Simon, District Judge.
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.
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
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
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).
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.
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
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
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.
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
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