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Kunkel v. Dill

July 28, 2010

PATRICK KUNKEL, PLAINTIFF,
v.
N. DILL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT'S MOTION TO DISMISS BE DENIED

(Doc. 20)

OBJECTIONS DUE WITHIN 30 DAYS

Plaintiff Patrick Kunkel ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 22, 2010, Defendant Pfeiffer filed a motion to dismiss on the ground that Plaintiff fails to state a claim against Pfeiffer. (Doc. #20.) Plaintiff filed an opposition to Defendant's motion to dismiss on May 18, 2010. (Doc. #38.) For the reasons set forth below, the Court recommends that Defendant's motion to dismiss be denied.

I. Background

A. Plaintiff's Claim Against Defendant Pfeiffer

This action proceeds on Plaintiff's first amended complaint, filed on October 8, 2009. (Doc. #8.) Plaintiff's first amended complaint stated claims against Defendants Garcia, Mendoza, Araich, Mackey, Robaina, Dileo, Dill, Pfeiffer, Ali, and Zamora for the violation of Plaintiff's rights under the Eighth Amendment. Plaintiff's Eighth Amendment claim is based on Defendants' failure to provide Plaintiff with adequate dental treatment for a broken tooth and failure to provide adequate medical treatment for his ankle and knee injuries.

Plaintiff alleges that Defendant Pfeiffer is an appeals coordinator. Plaintiff alleged that Pfeiffer became aware of Plaintiff's need for medical and dental treatment after Plaintiff filed numerous appeals processed by Pfeiffer. Plaintiff further alleged that Pfeiffer ignored Plaintiff's medical needs by denying or "screening out" Plaintiff's appeals.

B. Defendant Pfeiffer's Motion to Dismiss

Defendant argues that Plaintiff fails to state a claim against Defendant Pfeiffer because "[t]here is no allegation that PFEIFFER was personally involved in the plaintiff's medical care or treatment plan and he is not alleged to belong to the medical staff." (Pfeiffer's Mem. of P. & A. in Supp. of His Mot. to Dismiss 4:9-11, ECF No. 20.) Pfeiffer alleges that Plaintiff only alleged that Pfeiffer considered Plaintiff's inmate appeals. Pfeiffer contends that Plaintiff cannot state a claim against Pfeiffer for failing to grant an administrative grievance.

C. Plaintiff's Opposition to Defendant's Motion to Dismiss

Plaintiff argues that anybody who knows about a violation of the Constitution and fails to cure the violation is liable for the constitutional violation by failing to intervene. Plaintiff contends he filed at least 40 medical requests that did not receive a response over a five-month period of time. Plaintiff argues that Pfeiffer is liable for being aware that Plaintiff's constitutional rights were being violated and failing to intervene.

II. Discussion

A. Federal Rule of Civil ...


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