The opinion of the court was delivered by: Hon. Larry Alan Burns United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) [Doc. No. 42]
Jay Kimpel ("Plaintiff"), a prisoner currently incarcerated at the Richard J. Donovan Correctional Facility located in San Diego, California, proceeding pro se and in forma pauperis ("IFP") has filed a civil rights action pursuant to 42 U.S.C. § 1983.
Defendants Walker and Jayasundara ("Defendants") have filed a Motion to Dismiss Plaintiff's Second Amended Complaint ("SAC") pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 42]. Plaintiff filed his Opposition on April 29, 2010 [Doc. No. 43] to which Defendants have filed their Reply [Doc. No. 44].
The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
II. PLAINTIFF'S FACTUAL ALLEGATIONS
On December 15, 2007, while incarcerated at the Richard J. Donovan Correctional Facility ("RJDCF") Plaintiff sought medical treatment for "unbearable pain." (See SAC at 1, 3.) Plaintiff claims that he was examined by Defendants Walker and Jayasundara who refused to renew pain medication that had been prescribed for him by a different doctor. (Id.) Plaintiff claims that Defendants told him he was "faking it" and denied him any treatment. (Id.)
Several months later, Plaintiff was being examined by Dr. Hunt*fn1 on June 24, 2008. (Id. at 4.) Plaintiff claims that Defendant Jayasundara interrupted this examination and told Dr. Hunt that Plaintiff was a "big faker." (Id.) On July 7, 2008, Plaintiff alleges that Defendant Jayasundara refused to provide a wrist brace for Plaintiff that was ordered by Dr. Hunt. (Id. at 5.)
III. DEFENDANTS'MOTION TO DISMISS
Defendants seek dismissal of Plaintiff's Second Amended Complaint pursuant to Rule 12(b)(6) on the ground that Plaintiff has failed to allege facts sufficient to show that any of them acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment.
B. FED.R.CIV.P. 12(b)(6) Standard of Review
A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (internal quotation marks omitted).
A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable ...