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October 4, 2005.

REMIGIO MAGANA, CDC #D-88908, Plaintiff,
G.J. GIURBINO, et al., Defendants.

The opinion of the court was delivered by: THOMAS WHELAN, District Judge

[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.

  II. Factual Allegations

  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. 12(b)(6)

  A. Standard of Review

  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 to ...

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