The opinion of the court was delivered by: /s/ Michael J. Seng Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED WITH LEAVE TO AMEND
OBJECTION DUE WITHIN THIRTY DAYS
Plaintiff Craig G. Cooper ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff's so-titled "1st Amended Complaint," filed January 13, 2009 in which Plaintiff alleges that Defendant Yates ("Defendant") failed to protect Plaintiff and acted with deliberate indifference to his medical needs in violation of the Eighth Amendment. (ECF No. 1.) This action was originally filed in State Court and then removed by Defendant to this Court.
On July 22, 2010, Defendant filed a Motion to Dismiss Plaintiff's Complaint, arguing that Plaintiff failed to state a cognizable claim, that Defendant is entitled to qualified immunity, and that certain of Plaintiff's claims are barred by time requirements under California's Government Claims Act. (ECF No. 25.) Plaintiff filed an opposition on August 5, 2010. (ECF No. 26.) Defendant filed a reply on August 8, 2010. (ECF No. 27.)
In his Complaint, Plaintiff alleged the following facts: In 1999, Plaintiff was transferred to Pleasant Valley State Prison ("PVSP"). He remains in custody there. Plaintiff began having breathing and other health problems in July 2006. He received treatment at PVSP and then was transferred to an outside hospital where he was diagnosed with Ciccidioidomycisis ("Valley Fever"). Plaintiff receives ongoing medical treatment for this condition.
Plaintiff brought suit against James Yates, Warden of PVSP, arguing that Defendant failed to warn or protect Plaintiff from exposure to Valley Fever in violation of the "Government Codes (Calif.)" and Plaintiff's Eighth Amendment rights. Plaintiff also brought suit for intentional tort and general negligence.
The Court found, in its screening order dated February 11, 2010, that Plaintiff's Eighth Amendment claims against Defendant were cognizable and could go forward. (ECF No. 13.)
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because the focus of a 12(b)(6) motion is on the legal sufficiency, rather than the substantive merits of a claim, the Court ordinarily limits its review to the face of the complaint. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Generally, dismissal is proper only when the plaintiff has failed to assert a cognizable legal theory or failed to allege sufficient facts under a cognizable legal theory. See SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 782 (9th Cir. 1996); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Further, dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of a claim. See Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). In considering a Rule 12(b)(6) motion, the Court accepts the plaintiff's material allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).
IV. ARGUMENT AND ANALYSIS
Defendant makes four arguments: (1) Plaintiff's Eighth Amendment claim fails to allege sufficient facts to support a claim of deliberate indifference; (2) Plaintiff fails to allege Defendant's direct participation in the violation of his rights; (3) Defendant is entitled to qualified immunity; and (4) Plaintiff's state tort claims are barred by ...