The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND
Defendants William B. Kolender ("Kolender") and the County of San Diego ("County") move to dismiss Plaintiff's Second Amended Complaint ("SAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has not filed an opposition to the motion to dismiss. The newly joined defendants identified in the SAC (Dennis Runyen, Earl Goldstein, Beverly Orr, Kama Gulluma, Arun Swaminath, G. Garcia, Neath Sneathins, Balcita Abalcish, Joshua Lee, and James Adams) have yet to be served in this action and have not filed a response to the motion to dismiss. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the motion to dismiss is granted with 30 days leave to amend from the date of entry of this order.
On November 9, 2005 Plaintiff commenced this civil rights action alleging that Defendants were deliberately indifferent to his serious medical needs during his incarceration at the George Bailey Detention Facility from August 2004 to January 2005. (SAC at p.3). The court sua sponte dismissed the original complaint pursuant to the screening provisions of 28 U.S.C. §1915(e)(2). On January 2, 2008 the court granted Kolender and County's ("Moving Defendants") motion to dismiss the first amended complaint with leave to amend.
Plaintiff alleges that Moving Defendants violated his right to medical care and thereby subjected him to cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff alleges that the County exercises control over the jail and deprived him of adequate medical care because of budget constraints and overcrowding. (Id. at p.3). Consequently, "due to jail overcrowding [Plaintiff] was not administered immediate medical care and treatment because jail overcrowding and budget constraints prevented [him] from gaining access to jail infirmary housing." (Id. at p.4).
Upon his arrest and transport to the detention facility, Plaintiff alleges that he experienced shortness of breath due to his medical conditions, which include deep vein thrombosis, a stasis ulcer and brawny edema. He had not taken his anticoagulant medication for deep-vein thrombosis in over two days. (Id. at 4). He alleges that he required immediate hospitalization but was sent to a holding cell for a period of 12 hours before being seen by a physician. (Id. at p.7). "As a result of Defendants' deprivation of [his] constitutional rights (aforementioned) [Plaintiff] has suffered permanent harm including, shortness of breath, increased swelling, tenderness and pain in [his] legs, loss of feeling in three of [his] toes, an increase in the size of a stasis ulcer on [his] left ankle (threefold), loss of short term memory, and emotional distress." (Id. at pp. 4-5).
Defendant Kolender is alleged to exercise supervisory control over the County's jails and is "in charge over the inmate population incarcerated in the" jail. (Id. at p.5). Kolender deprived him of his rights to medical cared due to overcrowding and budget constraints. (Id.). The overcrowding and budget constraints also violated his Eight Amendment rights to be free from cruel and unusual punishment.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants Kolender and County move to dismiss the complaint on grounds that Plaintiff fails to adequately allege a cognizable constitutional violation and that there is no supervisory liability under 42 U.S.C. §1983).
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, __550 U.S. __, 127 S.Ct. 1955 (2007). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
The Constitutional Violation
Moving Defendants argue that Plaintiff fails to state a constitutional violation and therefore fails to state a claim against them. Plaintiff argues that the delay or denial of medical care violated his Eight Amendment right to be free from cruel and unusual punishment. The Eighth Amendment prohibits punishment that involves the "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). This principle "establish[ed] the government's obligation to provide medical care for those whom it is punishing by incarceration." Id. The Supreme Court has noted that "[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Id.; West v. Atkins, 487 U.S. 42, 54-55 (1988). In the Ninth Circuit, this obligation extends even beyond the prison gates. See Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999) (finding that the state "must provide an ...