The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE GRANTED WITH LEAVE TO AMEND (Doc. 31) OBJECTIONS DUE WITHIN TWENTY DAYS
Findings and Recommendations
I. Relevant Procedural History
Plaintiff Miguel A. Jimenez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's claims under section 1983 against Defendants R. Wenckier, E. Nocye, Charles O'Brien, and Harold Tate ("Defendants") for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. On May 26, 2009, Defendants filed a motion to dismiss. (Doc. 31.) On June 12, 2009, Plaintiff filed an opposition to Defendant's motion to dismiss. (Doc. 35.) Defendants did not file a reply.
Defendants move for dismissal on the grounds that Plaintiff failed to state a claim for relief against Defendants O'Brien and Tate;*fn1 and that Plaintiff's request for injunctive relief should be dismissed because of the pendency of class actions that subsume such relief. (Doc. 31, MTD, 1:24-28.)
III. Failure to State a Claim
Defendant argues that Plaintiff fails to allege sufficient facts to state a claim against him. "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).
B. Eighth Amendment Claim
Where a prisoner's Eighth Amendment claim is one of inadequate medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1991). A medical need is serious "if the failure to treat the prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
If a prisoner establishes the existence of a serious medical need, he must show that prison officials responded to the serious medical need with deliberate indifference. Farmer, 511 U.S. at 834. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
Plaintiff's Complaint alleges that during his incarceration at Ironwood State Prison he was diagnosed with kertaconous (a condition where the cornea becomes thin and changes to a more conical shape than normal) and had been fitted for and received a pair of rigid gas permeable ("RGP") contact lenses both the help him see and for "medical curative reasons." (Doc. 1, Compl., p. 4.) This qualifies as a serious medical need. Plaintiff alleges that upon being transferred to California Correctional Institution ("CCI") his RGP contacts were confiscated and that it subsequently took so long for Plaintiff to once again obtain RGP contacts that he is now blind in his left eye and has diminished vision in his right eye. Defendants O'Brien and Tate reviewed ...