The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER DENYING DEFENDANTS MOTION TO DISMISS PLAINTIFF'S FED.R.CIV.P.12(b)(6) COMPLAINT PURSUANT TO [Doc. No. 11]
Relaun Deadmon ("Plaintiff"), a prisoner currently incarcerated at Corcoran State Prison in Corcoran, California, proceeding pro se and in forma pauperis, has filed a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that, while he was incarcerated at Calipatria State Prison ("CAL"), various CAL and California Department of Corrections and Rehabilitation ("CDCR") officials violated his Eighth and Fourteenth Amendment rights by failing to provide him with adequate medical care. Plaintiff seeks declaratory and injunctive relief as well as compensatory and punitive damages.
All Defendants except two, G. Beltran and N. Grannis, have filed a Motion to Dismiss Plaintiff's Complaint for failing to state a claim against them pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 11]. The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Louisa S. Porter is necessary. See S.D. CAL. CIVLR 7.1(d)(1).
II. PLAINTIFF'S ALLEGATIONS
In 2004, Plaintiff was examined by the prison's urologist who informed Plaintiff that his kidneys were "not functioning well." Compl. ¶ 19. After further testing it was determined that Plaintiff had small kidneys. Id. ¶ 20. Based on this information, Plaintiff was referred to a nephrologist for further testing. Id. ¶ 21. After examining Plaintiff, the nephrologist made a "preliminary finding of kidney failure" and ordered a "low protein, low sodium" diet for Plaintiff. Id. ¶¶ 23, 25. Over two and one half months later, Defendant Levin, the Chief Medical Officer at Calipatria, approved this diet for Plaintiff. Id. ¶ 26. Plaintiff waited an additional five weeks for the diet to start before he contacted Defendant Mitchell, the Chief Food Manager, to inquire as to the status of his medically ordered diet. Id. ¶ 27.
Defendant Mitchell informed Plaintiff that he was unable to provide him with the medically ordered diet because Calipatria did not have a dietician. Id. ¶ 28. Based on this response, Plaintiff filed an administrative grievance "appealing the lack of [a] medically required diet of Calipatria and requesting a transfer to an institution that could provide said diet." Id. ¶ 29. On November 28, 2005, Defendant Erwin, Senior Medical Technical Assistant, responded to Plaintiff's grievance at the first formal level of review. Id. ¶ 31. Defendant Erwin informed Plaintiff that the medical department had contacted the "Utilization Management Physician (UMMD) in Sacramento concerning his special diet needs." See Pl.'s Exhibit No. 1, Director's Level Appeal Decision dated April 5, 2006. Defendant Erwin also stated that Plaintiff's "request for Follow-Up care and education concerning his condition is warranted." Id.
Plaintiff submitted this response to the next level of review and Defendant Gonzalez, the Utilization Management Nurse ("UMN") told him that a dietician would be scheduled "in the near future." Id. ¶ 32. After this response, Plaintiff appealed his grievance to the Sacramento Inmate Appeals Office which is the final level of review. Id. ¶ 33.
Defendant Beltran, the nutritionist, arrived to meet with Plaintiff on March 22, 2006. Id. Plaintiff alleges that when he met with Defendant Beltran, she gave him "two pieces of paper stating that Plaintiff's dietary health care needs were his responsibility and that special food considerations by prison staff were not required." Id. ¶ 35. Five days later, Defendant Nguyen*fn1, Plaintiff's Medical Health Care Physician, signed a medical chrono recommending Plaintiff be transferred to an institution with a registered dietician. Id. ¶ 38. As Chief Medical Officer, Defendant Levin approved Dr. Nguyen's recommendation for a transfer. Id. ¶ 39. Almost two weeks later, Defendant Grannis responded to Plaintiff's grievance denying a transfer and informed Plaintiff that he decided the nutritionist's "conclusion was appropriate and that plaintiff could pick and choose from the allotted amount of food given him." Id. ¶ 41. Plaintiff sent a copy of this response to Defendant Scribner, the Warden for Calipatria. Id. ¶ 42.
III. DEFENDANT'S MOTION TO DISMISS PER FED.R.CIV.P. 12(b)(6)
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). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the ...