The opinion of the court was delivered by: Irma E. Gonzalez, Chief JudgeUnited States District Court
ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Before the Court is the Rule 12(b)(6) motion to dismiss of defendants David Smith, M. Sheridan, M.X. McCurty, D. Koludrovic, Escalante, and Marquez.*fn1 (Doc. 6.) Plaintiff asserts an Eighth Amendment deliberate indifference claim under 42 U.S.C. § 1983, stemming from alleged inadequate and delayed medical care for a broken nose and a broken finger.
Plaintiff filed an opposition. (Doc. 15.) Defendant did not file a reply. Pursuant to Local Civil Rule 7.1, this matter is amenable to disposition without oral argument.
Plaintiff's complaint alleges the following. On September 26, 2006, a fellow inmate attacked plaintiff at Richard J. Donovan Correctional Facility (R.J.D.). (Compl. ¶¶ 4, 14.) In the attack, plaintiff suffered two blackened eyes, a broken nose, and a broken fifth finger on his left hand. (Compl. ¶ 14.) Correctional staff took plaintiff to Defendant M. Sheridan (MTA Sheridan), a Medical Technical Assistant at R.J.D., for an initial examination, a cursory inspection, and a determination whether plaintiff needed a medical doctor. (Compl. ¶ 18.) During the examination, plaintiff requested a doctor, complained of severe facial pain, reported the fracture of his left fifth finger, and stated his nose was "caved in on one side." (Compl. ¶ 18.) MTA Sheridan and Defendant M.X. McCurty, a Correctional Counselor present during the examination, looked at each other and "kind of chuckled." Plaintiff then remarked, "my finger and nose are broken." M.X. McCurty replied, "It looks like it." (Compl. ¶ 18.)
MTA Sheridan completed a form entitled "Medical Report of an Injury or Unusual Occurrence" and said, "Okay, you can go back now." (Compl. ¶ 18.) Plaintiff reiterated his request for medical attention, to which MTA Sheridan replied, "Sign up for sick call." (Compl. ¶ 19.) Plaintiff again pleaded for permission to see a doctor, stating, "I hurt all over, my finger is broken and my nose feels broken also." (Compl. ¶ 19.) MTA Sheridan became impatient and stated, "No doctor. Go back to your building." (Compl. ¶ 20.) Plaintiff protested and refused to return to his building without treatment. In response, M.X. McCurty angrily told plaintiff, "You're done, now go lock up." (Compl. ¶ 21.) Plaintiff returned to his housing unit and asked the floor correctional officer to see Defendant D. Koludrovic (Sgt. Koludrovic), a Program Sergeant, about his severe pain. (Compl. ¶ 22.)
The following day, plaintiff went to the Facility One Clinic at R.J.D. and requested treatment and pain relief. There, he notified Defendant Escalante (CO Escalante), a Correctional Officer at R.J.D. of his extreme pain, broken nose, and broken finger. (Compl. ¶ 23.) CO Escalante told plaintiff, "Come back tomorrow." (Compl. ¶ 24.)
On September 28, 2006, February 22, 2007 and June 8, 2007 Plaintiff returned to the Facility One Clinic requesting treatment for his broken nose and finger. On these visits, Defendants Dr. Richards and Dr. Navamani allegedly "did absolutely nothing meaningful." (Compl. ¶¶ 26, 29, 31.) Subsequently, Defendant Dr. Smith performed two surgeries on plaintiff's finger. (Compl. ¶ 12.)
Plaintiff alleges these actions constituted deliberate indifference and caused him to suffer two surgeries, permanent facial disfigurement, amputation of his finger, and psychological problems.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,---U.S.----, 127 S.Ct. 1955, 1974 (2007).
In deciding a motion to dismiss for failure to state a claim, the court's review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995) (citing Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, a court is not required to credit conclusory legal allegations cast in the form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).
A court may dismiss a complaint without granting leave to amend only if it appears with certainty that the plaintiff cannot state a claim and any amendment would be futile. See Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"); DeSoto v. Yellow Freight Systems, Inc., 957 F.2d 655, 658 (9th Cir.1992); Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) ("leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.").
II. Eighth Amendment Claim
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)). Prison officials violate a prisoner's Eighth Amendment right to be free from cruel and unusual punishment if they are deliberately indifferent to the prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989).
To evaluate deliberate indifference, the court focuses on the seriousness of the prisoner's medical needs and the nature of the defendants' response to those needs. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overrruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). A serious medical need is "an injury that a reasonable doctor or patient would find important and worthy of comment or treatment." McGuckin, 974 F.2d at 1059. In cases involving delay of treatment, "the fact that an individual sat idly by as another human being was seriously injured despite the defendant's ability to prevent the injury is a strong indicium of callousness and deliberate indifference...." Id. (citing Estelle, 429 U.S. at 106).
Further, the prisoner must allege harm caused by the deliberate indifference. A mere delay in treatment does not constitute a violation of the Eighth Amendment, unless the delay or denial was harmful. See McGuckin, 974 F.2d at 1060. The Eighth Amendment is violated if "delays occurred to patients with problems so severe that delays would cause significant ...