The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT MCGUINNESS'S MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART, AND RECOMMENDING DISMISSAL OF SECOND AMENDED COMPLAINT, WITH LEAVE TO AMEND
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendant McGuinness's Motion to Dismiss and Sua Sponte Re-Screening of Second Amended Complaint
This is a civil action filed pursuant to 42 U.S.C. § 1983 and California tort law by Plaintiff Eddie Brewer, a state prisoner proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's second amended complaint, filed July 3, 2008, against Defendants William J. McGuinness and N. Grannis for violation of the Eighth Amendment and for negligence under California law. Plaintiff's claims arise from Defendants' alleged failure to intervene and order the removal of an AV fistula implanted in Plaintiff's arm, which causes Plaintiff pain and is medically unnecessary.
On April 30, 2009, Defendant McGuinness filed a motion to dismiss for failure to state a claim, and a supporting request for judicial notice of the records of the California Victim Compensation and Government Claims Board (the Board).*fn1 Fed. R. Civ. P. 12(b)(6). Plaintiff failed to file an opposition or otherwise respond to the motion. Local Rule 78-230(m).
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal at 1949 (citing Twombly at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
III. Eleventh Amendment Immunity
Defendant first argues that the Eighth Amendment claim against him should be dismissed because it is brought against him in his official capacity, and is barred by the Eleventh Amendment.
"The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials in their official capacities." Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003).
"Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 25; Suever v. Connell, Nos. 08-15884, 08-16161, 2009 WL 2606235, *12 (9th Cir. Aug. 26, 2009). Where a plaintiff is seeking damages against a state official and the complaint is silent as to capacity, a personal capacity suit is presumed given the bar against an official capacity suit. Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991).
Here, Plaintiff does not allege an official capacity suit against Defendant McGuinness, and it is clear from his allegations that the basis for liability is not Defendant's mere position as a state official but his failure to intervene and alleviate Plaintiff 's pain by ordering the removal of the fistula. Liability is premised on Defendant's personal involvement in responding to Plaintiff 's medical care complaints rather than his official position. Accordingly, the Court rejects ...