FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendant has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons explained below, the motion must be denied as to plaintiff's damages claim but granted as to plaintiff's injunctive relief claim.
This action proceeds on the March 11, 2008 amended complaint in which plaintiff alleges that defendant was deliberately indifferent to his medical needs. Plaintiff alleges he suffers from extreme pain in his left arm. Am. Compl. ("Compl.") at 5; Mar. 17, 2008 Supp. Compl. ("Supp. Compl.") at unnumbered page 3. Plaintiff further alleges that he received narcotic pain medication at his previous institution, but on March 22, 2007, after being transferred to High Desert State Prison, defendant denied his request for the same medication. Compl. at 5, second page 3. Instead, plaintiff alleges, defendant prescribed him medications that cause him to bleed, have skin rashes, experience ringing in his ears, and cause kidney problems, as plaintiff has only one kidney. Id. at unnumbered page 20; Supp. Compl. at unnumbered page 3. According to plaintiff, defendant knew that he was in extreme pain, and also knew that the medications she prescribed caused plaintiff to suffer from the side effects described above because they were documented in his medical records. Compl. at 5, unnumbered page 20; Supp. Compl. at unnumbered page 3. Plaintiff requests damages, as well as a court order directing that he be transferred to an institution that can accommodate his medical needs. Compl. at 5, unnumbered page 20. .
II. Standards on a Motion to Dismiss
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, U.S. , 127 S.Ct. 1955, 1964, 1969, 1974 (2007).*fn1 Thus, the grounds must amount to "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action. Id. at 1965. Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In assessing the sufficiency of the complaint, it's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The court may disregard allegations contradicted by the complaint's attached exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987)). The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). "[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
Defendant argues that plaintiff's Eighth Amendment claim does not allege any facts that demonstrate defendant was deliberately indifferent to plaintiff's serious medical needs and that his injunctive relief claim is moot.*fn2 Def.'s Mot. to Dism. at 3.
To prevail on a claim under the Eighth Amendment for inadequate prison medical care, a prisoner must demonstrate "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
To act with deliberate indifference, a prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need. Jett, 439 F.3d at 1096. A difference of opinion between the prisoner and medical providers concerning the appropriate course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Defendant argues that plaintiff's allegations amount to nothing more than a mere difference of opinion between plaintiff and defendant as to whether narcotics were medically necessary. Def.'s Mot. to Dism. at 3. Defendant also argues that she was not deliberately indifferent to plaintiff's medical needs because she offered plaintiff an alternative treatment to the medications that caused him stomach problems, which plaintiff refused. Id. at 6. To support the assertion that alternative treatment was offered, defendant cites to the prison's First Level Response to plaintiff's inmate appeal regarding the allegations in the complaint, which is attached to the complaint. Id.
"As a general rule, 'a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.'" Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. Cal. 2001) (citation omitted)). However, when a complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied sub. nom. Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944 (1987). Defendant is mistaken, however, in assuming that plaintiff has conceded the factual representations in the response to the grievance by merely attaching it to his complaint. The attachment of a document as an exhibit to the complaint does not mean that the plaintiff has adopted as true all the statements in the document. Furnace v. Sullivan, No. C-07-4441-MMC, 2008 U.S. Dist. LEXIS 93464, at *13-14 (N.D. Cal. Nov. 10, 2008) (citing Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2d Cir. 1995)). Here, the complaint indicates that the First Level Response letter is attached simply for the purpose of proving the exhaustion of administrative remedies. Compl. at 4 (section II.C.). There is nothing in the complaint to suggest that plaintiff was adopting as true the defendant's response to the grievance. Thus, the attachment consists of factual assertions by the defendant, not the plaintiff. The complaint contains no allegations that defendant offered plaintiff an alternative treatment, and in his opposition brief, plaintiff reiterates that defendant prescribed him medications that caused him to bleed. Pl.'s Opp'n to Def.'s Mot. to Dism. ("Pl.'s Opp'n") at 12-13, 15, Pl.'s Decl in Supp. Thereof ¶ 3. Accordingly, defendant's argument reduces to a claim that what plaintiff alleges in his complaint is not true. Defendant may, at a later stage of the litigation, choose to test the sufficiency of plaintiff's evidence to prove his allegations, as well as the sufficiency of plaintiff's evidence to dispute the defendant's factual claim that ...