The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS; GRANTING PLAINTIFF'S MOTION TO AMEND; SCHEDULING ORDER ON RESPONSE TO AMENDED COMPLAINT
On June 9, 2008, Robert Lionel Sanford ("Plaintiff"), a California prisoner proceeding pro se and in forma pauperis, filed an action against Defendants pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) On November 6, 2008, Defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), alleging that Plaintiff failed to state a claim against Defendants upon which relief can be granted because Plaintiff did not allege facts that state a claim under 42 U.S.C. § 1983. (Doc. No. 14 at 2.)
On October 22, 2008, Plaintiff moved this Court to amend his complaint under Fed. R. Civ. P. 15 to change Defendant Doe's name to Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation. (Doc. No. 17.) On December 1, 2008, Plaintiff filed an Opposition to Defendants' Motion to Dismiss. (Doc. No. 29.) Defendants filed their Reply to Plaintiff's Opposition on January 9, 2009. (Doc. No. 32.)
The Magistrate Judge issued a Report and Recommendation on February 11, 2009 recommending that this Court grant in part and deny in party Defendants' Motion to Dismiss, deny Plaintiff's Motion to Amend the name of Defendant Doe on his complaint, and allow Plaintiff to amend his complaint to allege further facts regarding Defendant Dr. Levin. (Doc. No. 33.) Plaintiff filed his Objection to the Report and Recommendation on March 1, 2009. (Doc. No. 35.) Defendants filed a Reply to Plaintiff's Objection on March 11, 2009. (Doc. No. 39.) Plaintiff also filed a Motion to Amend his complaint against Defendant Dr. Levin pursuant to Fed. R. Civ. P. 15 on February 24, 2009. (Doc. No. 37.)
For the reasons below, the Court ADOPTS in part the Magistrate Judge's Report and Recommendation, DENIES in part and GRANTS in part Defendants' Motion to Dismiss, and GRANTS Plaintiff's Motion to Amend as to Defendants Doe and Levin.
A. Civil Rights Allegations
Plaintiff alleges that On June 18, 2007, Plaintiff underwent a tonsillectomy and elective surgery at Alvarado Hospital in San Diego, California. (Doc. No. 1 at 43.) Plaintiff began hemorrhaging during recovery on June 26, 2007 because the surgery site had ruptured. (Doc. No. 1 at 28, 38.) Hospital staff responded about 45 minutes after being notified. (Doc. No. 1 at 28, 38.) Plaintiff was taken to the hospital medical ward where he was initially treated by Licensed Vocational Nurse ("LVN") Sowtell. (Doc. No. 1 at 14, 29.) Plaintiff alleges that LVN Sowtell knew she was not capable of treating Plaintiff's hemorrhage, and that even though LVN Sowtell was authorized to call for transportation to have Plaintiff removed to an outside hospital for additional treatment, LVN Sowtell refused to call for transportation for some unknown reason. (Doc. No. 1 at 14.) Plaintiff further contends that Nurse Practitioner ("NP") Thomas told LVN Sowtell over the phone to hold Plaintiff in the hospital medical ward for some unknown reason. (Doc. No. 1 at 15.) Plaintiff allegedly spent all night in the hospital medical ward where he bled heavily. (Doc. No. 1 at 14.) When NP Thomas arrived the following morning, Thomas ordered that Plaintiff be transferred to Pioneer's Memorial Hospital in Brawley, California, where Plaintiff was admitted to the emergency department for medical treatment. (Doc. No. 1 at 14-15.) Plaintiff also alleges that after he was transferred to Ironwood State Prison on July 11, 2007, he filed several CDC 602 Inmate Appeal forms about the incident in February 2008, which were not timely processed. (Doc. No. 1 at 23, 30.)
A. Standard of Review: Fed. R. Civ. P. 12(b)(6)
Defendants move to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. No. 14.) Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a short and plain statement of the claim that demonstrates that the pleader is entitled to some relief. The United States Supreme Court observed in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), that detailed factual allegations are not required under Rule 8, but the pleader cannot merely state "the-defendant-unlawfully-harmed-me" accusations. 550 U.S. at 555. Similarly, pleadings that simply state labels, legal conclusions, or formulaic recitations of the elements of a cause of action are insufficient and cannot withstand a Rule 12(b)(6) motion to dismiss, Twombly, 550 U.S. at 557, and the court does not have to accept as true any legal conclusions within a complaint, although conclusions can help frame a complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
When evaluating a motion to dismiss, allegations of material fact are accepted as true and viewed in a light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Courts presume that a complaint's general allegations include the specific facts necessary to support the allegations. Nat'l. Org. For Women v. Scheidler, 510 U.S. 249, 256 (1994). Courts are not bound solely to the allegations in the complaint, but may consider additional documentation included with the complaint to determine whether plaintiff can prove a set of facts in support of his allegations. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Moreover, a court is not required to credit legal conclusionscast 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).
To withstand a motion to dismiss, the complaint must contain sufficient factual matter, if accepted as true, that states a claim to relief that is plausible on its face. Iqbal, 129 S.Ct. at 1949. A complaint is facially plausible if the court, examining the factual content of the allegations, draws the reasonable inference that the defendant is liable for the conduct alleged. Id. Mere possibility that the defendant is liable is insufficient; the pleaded facts must demonstrate that, if true, defendant's liability is plausible. Id. A court should dismiss a complaint if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). While courts generally treat pro se pleadings under a less stringent standard than pleadings drafted by attorneys, Haines v. Kerner, ...