The opinion of the court was delivered by: THOMAS WHELAN, District Judge
(1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT
PURSUANT TO FED.R.CIV.P.12(b); and
(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO
DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6)
[Doc. No. 10]
I. Procedural History
On September 13, 2004, Plaintiff, an inmate currently
incarcerated at Calipatria State Prison in Calipatria,
California, and proceeding pro se, filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983. On November 22, 2004, this Court
granted Plaintiff's Motion to Proceed In Forma Pauperis and
directed the U.S. Marshal to effect service of Plaintiff's
Complaint pursuant to FED.R.CIV.P. 4(c)(2) and
28 U.S.C. § 1915(d). See Nov. 22, 2004 Order at 4.
Defendants Campos and Gonzales ("Defendants") have filed a
Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b),
42 U.S.C. § 1997e(a) and FED.R.CIV.P. 12(b)(6) [Doc. No. 10]. On July 20,
2005, Defendant Cerrillo, formerly designated "Jane Doe," filed a
Notice of Joinder to Defendants' Motion to Dismiss [Doc. No. 14].
Defendants claim that Plaintiff failed to exhaust his available
administrative remedies pursuant to 42 U.S.C. § 1997e(a) prior to
bringing the action currently before the Court. Defendants also
claim that Plaintiff failed to state either an Eighth or
Fourteenth Amendment claim against Defendants. On July 18, 2005,
Plaintiff requested an extension of time to file an Opposition to
the Defendants' Motion which the Court granted and permitted
Plaintiff to file his Opposition no later than September 2, 2005.
Plaintiff filed an Opposition on August 29, 2004 to which
Defendants filed a Reply on September 16, 2005.
On November 12, 2003, Plaintiff was incarcerated at Calipatria
State Prison ("Calipatria). See Compl. at 1-2. On that date he
slipped in water while he was working in the Facility "D"
Satellite Kitchen. Id. at 1. Plaintiff lost his footing and
severely injured his back. Id. at 2-3. Plaintiff was taken to
the prison's central infirmary where he was examined by Dr.
Sands. Id. at 3. Dr. Sands gave Plaintiff a seven day "lay
in"*fn1 and prescribed painkillers. Id. After the seven
days, Plaintiff informed Medical Technical Assistant
Cerrillo*fn2 and "Jane Doe" Nurse that he remained in
"excruciating pain" and needed more time off from work. Id.
Cerrillo and Jane Doe informed Plaintiff that he must continue to
work or he would be fired from his prison job which would result
in a loss of privileges. Id. Plaintiff's work duties included
lifting and carry heavy pots and pans. Id. The following day Plaintiff returned to the infirmary and
informed Cerrillo, as well as Jane Doe, that he was "in severe
pain, having back spasms and could barely lift his arms because
the pain was so debilitating." Id. MTA Cerrillo and Jane Doe
refused to allow Plaintiff to see the physician to request an
additional "lay in" and was told "you look fine, so you can
work." Id. at 3-4.
Plaintiff returned to his kitchen assignment where he was
observed by other inmates to be in pain. Id. at 4. When other
inmates attempted to assist Plaintiff, Defendant Campos ordered
Plaintiff to perform his work without additional assistance.
Id. The medical department had advised Defendants Campos and
Gonzales that Plaintiff had suffered a severe back injury. Id.
Plaintiff later informed his Correctional Counselor and
Lieutenant Ries of the situation. Correctional Counselor Brown
telephoned Campos and Gonzales in an attempt to allow Plaintiff
to have some time off. Id. However, Campos and Gonzales refused
to listen to Brown and informed him that if Plaintiff did not
return to work, he would be fired. Id. Plaintiff was later
issued a Rules Violation Report that resulted in a ten day
"confinement to quarters status" and a ninety day loss of phone
privileges due to Plaintiff's "refusing to perform assigned
duties." Id., Attachment to Compl., Loss of Privileges General
Chrono dated March 19, 2003.
Plaintiff filed an administrative grievance which was
"partially granted" on June 2, 2003. Id. at 5; Attachment to
Compl., First Level Appeal Response, CDC Log No. CAL-D-03-00615
dated June 2, 2003. Plaintiff claims to have submitted his
appeals to the Director's Level of Review but they were returned
to him with a stamp indicating "received without contents at San
Bernardino, CA." Id. at 5.
III. Defendants' Motion to Dismiss per FED. R. CIV.P.
A motion to dismiss for failure to state a claim pursuant to
FED.R.CIV.P. 12(b)(6) tests the legal sufficiency of the claims
in the complaint. A claim can only be dismissed if it "appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true
all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must
construe the complaint in the light most favorable to the
plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986); Parks School of Business, Inc. v. Symington,
51 F.3d 1480, 1484 (9th Cir. 1995).
The court looks not at whether the plaintiff will "ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). Unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim, a complaint cannot
be dismissed without leave to amend. Conley, 355 U.S. at 45-46;
see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000)
(en banc) (district court should grant leave to amend when
complaint fails to state a claim "unless it determines that the
pleading could not possibly be cured by the allegation of other
facts" and if "it appears at all possible that the plaintiff can
correct the defect") (citations omitted).
Where a plaintiff appears pro se, the court must construe the
pleadings liberally and afford the plaintiff any benefit of the
doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,
623 (9th Cir. 1988). The rule of liberal construction is
"particularly important in civil rights cases." Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably
unskilled in the law, the pro se litigant is far more prone to
making errors in pleading than the person who benefits from the
representation of counsel."). In giving liberal interpretation to
a pro se civil rights complaint, however, a court may not "supply
essential elements of the claim that were not initially pled."
Ivey v. Bd. of Regents of the University of Alaska,
673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of
official participation in civil rights violations are not
sufficient to withstand a motion to dismiss." Id.; see also
Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th
Cir. 1984) (conclusory allegations unsupported by facts are
insufficient to state a claim under section 1983.) "The plaintiff
must allege with at least some degree of particularity overt acts
which defendants engaged in that support the plaintiff's claim."
Jones, 733 F.2d at 649 (internal quotation omitted). In addition, when resolving a motion to dismiss for failure to
state a claim, the court may not generally consider materials
outside the pleadings. Schneider v. California Dep't of
Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). "The
focus of any Rule 12(b)(6) dismissal . . . is the complaint."
Id. at 1197 n. 1. However, the court may consider documents or
exhibits "whose contents are alleged in a complaint and whose
authenticity no party questions." Branch v. Tunnell,
14 F.3d 449, 454 (9th Cir. 1994) overruled on other grounds by Galbraith
v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Hal
Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th
Cir. 1990); Stone v. Writer's Guild of Am. W. Inc.,
101 F.3d 1312, 1313-14 (9th Cir. 1996).
B. Eighth Amendment Inadequate Medical Treatment Claims
Defendants Campos and Gonzales have filed a Motion to Dismiss
seeking dismissal of Plaintiff's Complaint on the grounds that he
has failed to allege facts sufficient to an Eighth Amendment
claim. See Defs.' Mot. at 5. Defendant Cerrillo filed a joinder