The opinion of the court was delivered by: William Alsup United States District Judge
ORDER GRANTING MOTION TO DISMISS; OF DISMISSAL
Plaintiff, a prisoner of the State of California, filed this civil rights action pursuant to 42 U.S.C. 1983. On May 8, 2009, the complaint was dismissed with leave to amend. Plaintiff filed an amended complaint asserting that defendants James D. Hartley, E. Weinstein, E. Greenman and Sampath Kumar Suryadevara, violated his Eighth Amendment right to adequate medical care while plaintiff was incarcerated at Avenal State Prison. The claims against defendant Hartley were dismissed, but the amended complaint was ordered served upon the remaining defendants. Defendant Weinstein could not be served because he is not at Avenal State Prison, where plaintiff indicated that he could be found. Defendants Greenman and Suryadevara were served and have moved to dismiss the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cognizable claim for relief. Plaintiff has filed an opposition to the motion and defendants have filed a reply. For the reasons discussed below, the motion to dismiss is GRANTED, and the claims against the non-moving defendant, Weinstein, are also DISMISSED.
In the amended complaint, plaintiff alleges that he received "poor medical treatment" for his knee, from which he suffered "much pain" between November 3, 2005, and May 9, 2007. He received surgery on the knee in 2007, and alleges that he continues to suffer pain from it. He alleges that defendants Suryadevara, Weinstein and Greenman are doctors and Chief Medical Officers at Avenal, and that they took too long to respond to his administrative grievances in which he requested medical care for his knee. Plaintiff seeks injunctive relief and damages.
Failure to state a cognizable claim for relief is a grounds for dismissal before service under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to set forth only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). A motion to dismiss should be granted if the complaint does not proffer "enough facts to state a claim for relief that is plausible on its face." Id. at 570. This standard applies to all cases, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009), but a pro se pleading must be liberally construed and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers," Twombly, 550 U.S. at 570.
In evaluating a motion to dismiss under Rule 12(b)(6), a federal court is limited to reviewing the contents of the complaint, Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to the complaint or documents the complaint necessarily relies on and whose authenticity is not contested. Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, allegations of fact in the complaint must be taken as true and construed in the light most favorable to the non-moving party. Symington, 51 F.3d at 1484. A plaintiff may plead himself out of a claim by including unnecessary details contrary to his claims. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A court, for example, is not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint. Twombly, 550 U.S. at 555.
To state a claim under 42 U.S.C. 1983, a plaintiff must allege two elements:
(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
In their motion to dismiss, defendants Greenman and Suryadevara argue that the allegations in the amendment complaint, even if assumed to be true and liberally construed in plaintiff's favor, do not state a plausible Eighth Amendment claim against them. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. See McGuckin, 974 F.2d at 1059.
Defendants do not dispute that plaintiff's knee condition is a "serious" medical need. Rather they argue that the allegations in the amended complaint fail to establish that they acted with deliberate indifference to the condition. A prison official's response to an inmate's serious medical need amounts to deliberate indifference if the official knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," but he "must also draw the inference." Ibid. If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). In order for deliberate indifference to be established, therefore, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
Plaintiff alleges that defendants Greenman, Weinstein, and Suryadevara took an "excessive amount of time" to respond to administrative grievances in which he requested medical care. He alleges that such delays worsened his knee injury. Plaintiff does not, however, allege in the amended complaint how long the defendants delayed in responding to his grievances, describe what medical complaints he made to each defendant, or identify which grievances the different defendants failed to respond to in a timely fashion. The simple allegation that defendants' delays were "excessive" and caused him to suffer further ...