ORDER

CINDY K. JORGENSON, District Judge.

Plaintiff Martial Ledvina filed this civil rights Complaint alleging constitutional deprivations in violation of 42 U.S.C. § 1983 as well as state-law claims against numerous Defendants. (Doc. 1.) The parties stipulated to dismissal of the Marana Defendants, and on February 4, 2015, the Court dismissed the state law claims with prejudice and dismissed the federal constitutional claim against Defendant Sheriff Clarence Dupnik with leave to amend. (Docs. 26, 30.) Plaintiff filed a First Amended Complaint (FAC) against Dupnik and three Doe Defendants, and Defendants moved to dismiss. (Docs. 31, 32.) At oral argument before Magistrate Judge D. Thomas Ferraro, Plaintiff clarified that Dupnik was sued solely in his official capacity and that the Doe Defendants were sued in their individual and official capacities. (See Doc. 41 at 2.)

On June 19, 2015, the Magistrate Judge issued a Report and Recommendation (R & R) recommending that the motion to dismiss be granted and finding that further amendment would be futile. (Doc. 41.) Plaintiff filed objections to the R & R and Defendant filed a response, asking the Court to overrule the objections. (Docs. 44, 45.)

The Court will overrule Plaintiff's objections, adopt the R & R, grant the Motion to Dismiss, and terminate the action.

I. Governing Standard

The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); See also, Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).

II. Factual Background and the Report and Recommendation

The R & R states the following facts as taken from the FAC. Plaintiff does not object to the statement of facts, and the Court finds no clear error.

The action arises from Plaintiff's arrest on January 14, 2013, for alleged domestic abuse and his subsequent one-day confinement in the Pima County Adult Detention Complex (P.C.A.D.C.). Plaintiff was an 83-year-old, 140-pound man with a heart condition. (Doc. 31 at 2.) Plaintiff underwent open heart surgery and began taking numerous medications to prevent complications 15 months prior to his arrest. (Id.) Plaintiff was arrested and booked into the Pima County Jail at 8:16 p.m. (Id.) During the intake screening interview, Plaintiff's medical conditions and prescription doses were verified. (Id. at 3.) Plaintiff promptly advised a correctional officer at the jail of his need to "see the nurse" but there was no response. (Id.) Plaintiff called out to the nurse directly, but she too ignored his pleadings, and he was subsequently removed to a cell. (Id.) On multiple occasions during the intervening hours of his detention, he reminded officers he needed to see the nurse and take his medication, but without success. (Id.) Plaintiff alleges that he experienced "much anxiety" from missing his evening and morning doses of medication. (Id.) Plaintiff was released at noon and his medication was returned. (Id.)

Plaintiff alleges there are no policies or procedures at the Pima County Jail governing the administration of prescription medication to newly arrested inmates. (Id. at 4.) He alleges a violation of his Fourteenth Amendment rights and seeks nominal and punitive damages.

Defendants argue that Plaintiff's Fourteenth Amendment claim should be dismissed because: (1) the claim is barred by the Prison Litigation Reform Act (PLRA) because Plaintiff failed to allege more than a de minimis physical injury; and (2) Plaintiff failed to sufficiently allege a physical injury or real pain as necessary to establish deliberate indifference to a serious medical need.

III. Motion, Objections, Response, and Analysis

A. PLRA

As the R & R notes, Defendants have withdrawn their argument under the PLRA in light of Talamantes v. Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009), which holds that the term "prisoner" in the PLRA does not apply to a plaintiff who files his action after his detention has ceased. (Doc. 41 at 4.) But the Court takes the opportunity to address the PLRA argument because it had previously rejected the argument again urged by Defendants. In the Motion to Dismiss, Defendants state the following:

(Doc. 32 at 3.)

In fact, the Court did not hold that Plaintiff's claims were barred by the PLRA. Rather, the Court stated the following:

A review of the claims in the FAC shows that Plaintiff seeks nominal and punitive damages for an alleged violation of his Fourteenth Amendment rights, not a claim for compensatory damages for mental or emotional injury. See Oliver, 289F.3d at 627-29.

This district continues to be plagued by defendants making this frivolous argument, as the Hon. Stephen McNamee observed in a recent sealed Order to Show Cause (OSC). The Court wrote

It appears to this Court that Defendant's argument is not only devoid of merit but is also legally frivolous. See United States v. Manchester Farming P'ship, 315 F.3d 1176, 1183 (9th Cir. 2003) (stating that a "frivolous [argument] is one that is groundless," and an argument is groundless if it is "foreclosed by binding precedent or . . . obviously wrong"). This is particularly disturbing because this Court previously rejected the argument in this very case.

Defendant's counsel is reminded of his obligations under Federal Rule of Civil Procedure 11. A copy of the Memorandum from the Attorney General's Office issued following the OSC is attached.

B. Constitutional Claim

A constitutional violation regarding medical care occurs when there is (1) a deliberate indifference to the serious medical needs of a prisoner that (2) results in "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Mere delay in receiving treatment or care is insufficient to state a claim unless that delay was harmful. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).

The Magistrate Judge noted in the R & R that in Plaintiff's response to the Motion to Dismiss and at oral argument, Plaintiff sought to assert a Fourteenth Amendment claim with a legal standard distinct from the Eighth Amendment standard set forth above. Plaintiff suggested there was a constitutional right to be given medication as prescribed and that a violation of such right would not require a showing of harm but Plaintiff cited no cases to support this theory in his supplemental brief. Instead, he cited Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), which states that the required harm need not be substantial, and argues that he alleges sufficient harm to state a claim. (Doc. 41 at 6; ref. Doc. 39 at 4-6.)

In his Objections, Plaintiff argues that the Court previously stated that:

(Doc. 44 at 2.)

Plaintiff further asserts that although he suffered no harm in the traditional meaning of the word, he did suffer harm at a pharmacological and physiological level. He contends that based on the arguments regarding the degree of harm that must be experienced to maintain a claim under the Fourteenth Amendment, Plaintiff included in his Supplement to Response to Motion to Dismiss Plaintiff's First Amended Complaint, an analysis of the medications that Plaintiff was denied and documentation showing that denial of those medications results in changes to the chemical balance of the patient thus, resulting in "physical" harm. (See Doc. 39 at 4-6.) Plaintiff argues that Jett states "[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs." 439 F.3d at 1096. Plaintiff also relies on the dictionary definitions of "harm" as "injury, loss or detriment," BLACK'S LAW DICTIONARY 285 (Pocket ed. 1996), and additional definitions such as "bodily harm" which is defined as "physical pain, illness, or impairment of the body" and "physical" which is defined as "material as opposed to mental or spiritual" and "of or relating to the body." Id.; THE MERRIAM-WEBSTER DICTIONARY 524 (1974) respectively. Plaintiff repeats these arguments in his objections.

The Report and Recommendation observed that Plaintiff also stated that "[t]he extent to which the missed doses harmed Mr. Ledvina may never be determined." (Doc. 41 at 6; ref. Doc. 39 at 5.) In his objections, Plaintiff acknowledges that this is true because to know the extent to which the level of medicine in Plaintiff's body had changed would have required a blood test as soon as he was released from custody and prior to taking any more medication. (Doc. 44 at 3.) But Plaintiff asserts that it is not speculative that the level of medication in his system changed as a result of his not receiving his medication and that [a]ny licensed physician would testify accordingly." (Id.)

The R & R found that the only harm alleged in the amended complaint is "much anxiety" precipitated by the Doe Defendants refusal to provide Plaintiff's heart medication in a timely fashion. The Magistrate Judge concluded that Plaintiff fails to allege in his complaint any facts upon which a reasonable inference could be drawn that he did suffer non-de minimis harm. The Magistrate Judge noted that Plaintiff did not allege that he experienced any pain, or that he suffered further medical complications due to this anxiety. As Plaintiff points out in his objections, the R & R discusses the allegations in the supplemental brief. The Magistrate Judge characterized the new allegations as "merely a hypothesis of harms that could occur when the medications prescribed to Plaintiff are not taken" and notes that Plaintiff "does not allege that any of them did happen to him. In fact, the supplemental brief states, `[t]he extent to which the missed doses harmed Mr. Ledvina may never be determined.'" (Id. at 5 (emphasis in original).) The R & R holds that the additional facts in the supplemental brief are speculative and do not create a reasonable inference that Plaintiff suffered more than de minimis harm.

The R & R adequately set out the standard of review on a Motion to Dismiss for failure to state a claim, and this Court need not repeat that standard here. But it is worth noting that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Determining plausibility is a "context-specific task. . ." that requires the court to "draw on its judicial experience and common sense." Id. at 679. A complaint cannot survive dismissal where the court can only infer that a claim is merely possible rather than plausible. Id.. "The facts alleged must be sufficient to nudge the claims `across the line from conceivable to plausible.'" Solis v. City of Fresno, 2012 WL 868681, at *8 (E.D.Cal. Mar. 13, 2012 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007); see also Tesi v. Recon Trust NA, 2013 WL 2635613, *4 (D.Ariz. June 12, 2013).

The Court agrees with the Magistrate Judge that even considering the allegations in the supplemental briefing, Plaintiff fails to state a claim. As Magistrate Judge Ferraro found, Plaintiff alleges only speculative injury. Plaintiff now argues that it is not speculative that the level of medication in Plaintiff's body changed, but this is not enough. It is insufficient to merely allege a change; without more, there is no allegation of anything more than de minimis harm. Moreover, according to the facts alleged in the FAC, Plaintiff was in the custody of Defendant for fewer than 16 hours and when he was released his medication was returned to him. He does not claim that he immediately sought medical attention or that he experienced medical complications as a result of either the anxiety or the untimely medication. There is insufficient factual content to allow the Court to draw the reasonable inference that any Defendant may be liable for a Fourteenth Amendment violation.

The Court overrules Plaintiff's objections. Moreover, the Court finds that further amendment of the Complaint will not correct the deficiency. The Court will grant the Motion to Dismiss and terminate the action.

IT IS ORDERED:

(1) The Report and Recommendation (Doc. 41) is adopted.

(2) Defendants Motion to Dismiss (Doc. 32) is granted; the remaining claims are dismissed with prejudice.

(3) The Clerk of Court is directed to terminate the action and enter judgment accordingly.