The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On December 22, 2009, defendants filed a motion to dismiss on the grounds that plaintiff fails to state a claim upon which relief can be granted, and that his claim for injunctive relief is barred in light of Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), a class action suit concerning mental health care in California state prisons. On January 6, 2010, plaintiff filed a timely opposition to the motion.
In his complaint plaintiff alleges as follows. Plaintiff suffers from a history of mental health problems, including suicidal thoughts. On December 27, 2007, Dr. McDogold, plaintiff's psychologist at California Medical Facility, recommended plaintiff be "moved to a correctional facility close to [plaintiff's] family in Southern California." (Am. Compl. at 6.)
This recommendation was based on Dr. McDogold's conclusion that plaintiff's family is a "stabilizing factor" in plaintiff's life, and his mental health would benefit from family visits. (Id.) On February 29, 2008, a Unit Classification Committee recommended plaintiff for transfer to a correctional facility close to his family in Southern California. (Id.) On March 18, 2008, a Classification Staff Representative endorsed plaintiff for transfer to California Men's Colony solely on the basis of Dr. McDogold's recommendation. (Id.) However, contrary to the above, plaintiff was transferred to a prison in Central California, where his family was unable to travel to visit plaintiff.
Plaintiff alleges that all defendants were deliberately indifferent to his serious medical needs when they failed to ensure plaintiff was transferred to a prison facility in Southern California, in violation of the Eighth Amendment. Plaintiff also alleges that defendants Cate and Marshall are "directly responsible for tacit authorization of violative policy and practices . . . or implementation of a policy or custom of inadequate mental health care within CDCR and CMC." (Am. Compl. 5, 10.) Plaintiff also alleges defendant Knowles "failed to exercise ministerial duties by refusing to enforce, monitor, and abide by the terms of a mental health care system" that would have provided plaintiff with a stable condition of confinement, in part by transferring him to a facility in Southern California, pursuant to his psychologist's recommendation. Plaintiff seeks injunctive relief only.
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Erickson, 551 U.S. 89 (citations omitted).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff claims that defendants failed to ensure plaintiff was transferred to a prison in Southern California near his family and failed to enforce the psychologist's recommendation he be transferred, in violation of the Eighth Amendment.
Plaintiff contends that defendants' failure to comply with Dr. McDogold's recommendation denies plaintiff the "therapeutic effect . . . and [interferes] with feasible measures necessary to implement and to adopt a comprehensive treatment plan" prescribed for plaintiff's serious mental health needs. (Opp'n at 4.) Plaintiff also contends that California Penal Code § 5068*fn1 provides plaintiff a protected liberty interest entitling him to due process.
Plaintiff seeks a court order requiring defendants to comply with Dr. McDogold's recommendation, and transfer plaintiff to a prison in Southern ...