The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss (Doc. 70). Plaintiff filed an opposition to the motion (Doc. 76) and defendants filed a reply (Doc. 82).
This action proceeds on plaintiff's second amended complaint (Doc. 19). His complaint includes claims regarding denial of medical needs, indifference to safety, retaliation and several state tort violations. Defendants previously brought a motion for more definite statement, which was denied. The undersigned found that although plaintiff's complaint is not eloquently written, and lacks explicit detail, his claims were set forth sufficiently for the Defendants to understand them.
Defendants bring this motion to dismiss based on plaintiff's failure to state a claim. Plaintiff has filed an opposition to the motion, and Defendants have filed a reply.
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), 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." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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 for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability,it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).
In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
A. DENIAL OF MEDICAL NEEDS
The treatment a prisoner receives in prison and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment ". . . embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with "food, clothing, shelter, sanitation, medical care, and personal safety." Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, the official's act or omission must be so serious such that it results in the denial of the minimal civilized measure of life's necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a "sufficiently culpable mind." See id.
Deliberate indifference to a prisoner's serious illness or injury, or risks of serious injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is sufficiently serious if the failure to treat a prisoner's condition could result in further significant injury or the ". . . unnecessary and wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) whether the condition significantly impacts the prisoner's daily activities; and (3) whether the condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
The requirement of deliberate indifference is less stringent in medical needs cases than in other Eighth Amendment contexts because the responsibility to provide inmates with medical care does not generally conflict with competing penological concerns. See McGuckin, 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to decisions concerning medical needs. See Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). The complete denial of medical attention may constitute deliberate indifference. See Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical treatment, or interference with medical treatment, may also constitute deliberate indifference. See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
Negligence in diagnosing or treating a medical condition does not, however, give rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a difference of opinion between the prisoner and medical providers concerning the appropriate course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,90 F.3d 330, 332 (9th Cir. 1996).
Plaintiff claims that "Defendants Warwick and Weaver failed to properly act investigating a lapse in plaintiff's blood pressure medication when requested by the Prison Law Office Attorney under the Plata case." (Comp. at 12). Warwick is a Deputy Attorney General and Weaver is the Plata Implementation Manager. As such, plaintiff fails to plead facts demonstrating these defendants denied, delayed, or intentionally interfered with his medical treatment. Instead, his allegations stem from an investigation which was conducted after the fact. Accordingly, plaintiff's complaint fails to state a claim for intentional interference with a serious medical need against these two defendants, and the motion to dismiss should be granted.
As to defendant Anderson's alleged deliberate indifference to plaintiff's medical needs, plaintiff claims that "in an attempt to correct or cleanse the physicians orders and medical records or out of mere negligence wrote the wrong year on the order, but regardless there was a pre-existing order Defendant Anderson failed to properly act to plaintiff's serious medical needs." (Comp. at 17). Defendants argue the allegations fail to demonstrate that defendant Anderson knew of and disregarded any excessive risk to plaintiff's health. Plaintiff responds that "Defendant Anderson made it perfectly clear to plaintiff that he was in some sort of serious trouble and was deliberately stopping his pain management medication." While this claim is unclear, it appears from plaintiff's claim that Dr. Anderson had requested the neurosurgeon to taper off, not instantly discontinue, plaintiff's medication. However, nowhere in his complaint or opposition to the motion does plaintiff indicate that Dr. Anderson was one of his treating physicians or that he was actually the one in charge of his medication, rather than a reviewing physician. Thus, the claim of medical indifference is insufficient and the motion to dismiss should be granted.
As to defendant Andreason, who plaintiff identifies as the Chief Medical Officer at the California Medical Facility (CMF), the claims for deliberate indifference are unclear. Plaintiff alleges defendant Andreason was involved in an alleged cover-up conspiracy, improperly denied his inmate grievance appeals, and failed to process his inmate grievance as an emergency appeal. These claims are addressed below. However, there are no facts alleged in the complaint indicating that defendant Andreason was personally involved in plaintiff's medical treatment or lack thereof, including his medication. Therefore, the complaint fails to state a claim against defendant Andreason for deliberate indifference to plaintiff serious medical needs, and the motion to dismiss on this ground should be granted.
Plaintiff also states "Defendants Cry, Khoury, Bick, Andreason, Donahue, Kearney, Warwick, and Weaver conspired to cover up, deny to forego their areas of responsibility to plaintiff's serious medical needs with no legitimate penological interest." (Compl. at 17). However, such conclusory allegations cannot sustain a claim of deliberate indifference to a serious medical need.
Plaintiff's claims against defendants Cox, Roche, and James, all appear to also arise out of the denial of his inmate grievance appeals and not from the treatment he received or failed to received from these individuals personally. He claims that he was denied his pain medication by a nurse per prison policy and pursuant to a policy endorsed by defendants Cox, Roche and James. Documents referred to by defendants, and attached to plaintiff's original complaint, indicate that during the inmate grievance process, plaintiff was interviewed by Dr. James, who apparently determined that plaintiff's prescription for his prior pain medication, Oxycodone or Methadone, had expired, and instead of renewing those prescriptions, determined Motrin was sufficient to manage his pain. To the extent this decision is the basis for plaintiff's claim against Dr. James, such a situation is insufficient to maintain a claim for deliberate indifference to a serious medical need. Rather, at best plaintiff's allegation raises a difference of opinion as to what medication was necessary. However, Dr. James did not deny him pain medication, but prescribed a medication plaintiff did not agree with. There is nothing in the facts alleged which raise a claim for denial of medical treatment. As stated above, a difference in opinion is insufficient. In addition, there are no facts alleged that either defendant Roche or Cox was involved in plaintiff's treatment or the decision of what pain medication was appropriate. It appears their only involvement in plaintiff's treatment was the endorsement of a policy and a review of his inmate grievance, which, discussed below, are also insufficient. Therefore, the motion to dismiss should be granted on these grounds.
B. CONDITIONS OF CONFINEMENT
The treatment a prisoner receives in prison and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment "embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with "food, clothing, shelter, sanitation, medical care, and personal safety." Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, the official's act or omission must be so serious such that it results in the denial of the minimal civilized measure of life's necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a "sufficiently culpable mind." See id.
"To sustain an Eighth Amendment claim, the plaintiff must prove a denial of 'the minimal civilized measure of life's necessities,' occurring through 'deliberate indifference' by prison personnel or officers." Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981), Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). However, temporary unconstitutional conditions of confinement do not rise to the level of constitutional violations. See Anderson v. County of Kern, 45 F.3d 1310 (9th Cir. 1995).
Plaintiff's claims as to the conditions of his confinement relate to the lack of bathroom facilities, the failure of defendant Cobb to unlock the bathroom facilities, and the lack of proper clothing for 40 days and shower for 15 days.*fn1 While at some point lack of proper clothing, and a shower may rise to the level of a constitutional violation, it is not apparent from the facts alleged in this case that plaintiff suffered such a violation. From the facts alleged, it appears the lack of clothing and shower occurred one time, and was not an on-going, continuous occurrence. The denial of a shower on a continuous basis at some point will rise to the level of violating the Eighth Amendment. However, a one time denial of a shower for 15 days is insufficient. Similarly, adequate clothing is a basic necessity, and denial of adequate and clean clothing for an extended basis will rise to the level of violating the Eighth Amendment. However, a one time denial of adequate clothing for a period of 40 days is insufficient to rise to that level. In addition, plaintiff fails to identify any specific defendant responsible for denying him adequate clothing and shower facilities. Therefore, these claims should be dismissed.
However, the same is not true for the allegations against defendant Cobb for failure to make bathroom facilities available. Plaintiff alleges that instead of opening the bathroom facilities every half-hour, defendant Cobb would only unlock the facilities every two hours. It appears that this situation was not a one time temporary circumstance, but occurred on an ongoing basis for over a year, which plaintiff alleges was due to the overcrowded condition and use of the day-room for housing inmates. Plaintiff alleges that due to his medication he required use of the bathroom facilities ...