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Lang v. Hernandez

September 22, 2009

DANIEL J. LANG, PLAINTIFF,
v.
ROBERT J. HERNANDEZ; MATTHEW MEUNIER, M.D.; CANLAS, M.D.; I. CHOO; E. ROMERO; WHITEHEAD, R.N.; ESCALANTE; J. KAHNG, M.D.; AND DOES 1--3, DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION AND (2) GRANTING DEFENDANT'S MOTION TO DISMISS (Doc. Nos. 23 & 30)

Presently before the Court are Magistrate Judge Cathy Ann Bencivengo's Report and Recommendation ("R&R") advising this Court to grant Defendants' motion to dismiss, (Doc. No. 30) Plaintiff's objections, (Doc. No. 34) and Defendants' reply. (Doc. No. 35.) For the following reasons, the Court ADOPTS the report and recommendation, GRANTS Defendants' motion to dismiss, and DISMISSES this action.

BACKGROUND

Plaintiff, a state prisoner incarcerated at Richard J. Donnovan Correctional Facility in San Diego, California, brings this complaint alleging that Defendants violated his constitutional rights by providing him with inadequate medical care with respect to his arthritis. This includes delayed or denied treatment and denial of medications. He also claims that Defendants denied him certain treatments for a knee injury and for shoulder pain.

Plaintiff filed the First Amended Complaint in this on September 10, 2008. (Doc. No. 10 ("FAC").) On December 12, 2008, Defendants filed a motion to dismiss. (Doc. No. 23.) On March 5, 2009, Plaintiff filed an opposition, (Doc. No. 26) and on March 18, 2009, Defendants filed a reply. (Doc. No. 17.) On April 29, 2008, Magistrate Judge Bencivengo issued a report and recommendation ("R&R"), advising this Court to grant Defendants' motion. (Doc. No. 30.) Plaintiff filed objections to the R&R on August 7, 2009, (Doc. No. 34) and Defendants replied on that same day. (Doc. No. 35.)

LEGAL STANDARD

I. Review of the Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, in the absence of timely objection, the Court need "only satisfy itself that there is no clear error on the face of the record." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

II. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US - , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.

Where a motion to dismiss is granted, "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.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, the Court may deny leave to amend where amendment would be futile. See id.; Schreiber Distrib., 806 F.2d at 1401.

III. Eighth Amendment Deliberate Indifference to Medical Needs

Under the Eighth Amendment, an inmate is guaranteed "constitutionally adequate medical and mental health care." Conn v. City of Reno, 572 F.3d 1047, 1054 (citing Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir.1994)). To violate the Eighth Amendment, the prison official must act with "deliberate indifference" to a prisoner's serious medical need. Estelle v. Gamble, 429 U.S. 97, 104--05 (1976). "Deliberate indifference" in this context is a high standard, present only where "the ...


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