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Alexander Mckenzie v. R. Hernandez

January 28, 2011

ALEXANDER MCKENZIE,
PLAINTIFF,
v.
R. HERNANDEZ, H.J. JUDD, DR. CHU, JOHN DOE #1, DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING MOTION TO DISMISS

On November 19, 2009, Plaintiff Alexander McKenzie ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against officials at R. J. Donovan State Prison, alleging violations of his Eighth and Fourteenth Amendment rights. (Doc. No. 1.) On March 8, 2010, Defendants R. Hernandez and Dr. Choo (erroneously sued as Dr. Chu) filed a motion to dismiss the complaint. (Doc. No. 15.) On July 19, 2010, this Court granted the motion to dismiss without prejudice and allowed Plaintiff to file an amended complaint. (Doc. No. 22.)

On September 27, 2010, Plaintiff filed his First Amended Complaint ("FAC") alleging violations of his Eighth and Fourteenth Amendment rights. (Doc. No. 27.) On October 18, 2010, Defendants filed a motion to dismiss the FAC. (Doc. No. 28.) On December 8, 2010, Plaintiff filed a response in opposition to Defendants' motion. (Doc. No. 34.) On December 27, 2010, Defendants filed a response to Plaintiff's opposition to motion. (Doc. No. 39.)

BACKGROUND

Plaintiff alleges he sustained an injury to his head when he slipped on debris at his assigned inmate work site on May 21, 2004. (Doc. No. 27 at 3.) Plaintiff complains about his subsequent medical care and inmate 602 appeal, and alleges three causes of action against Defendants: (1) deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment, (2) an unsafe work environment constituting cruel and unusual punishment in violation of the Eighth Amendment, and (3) failure to timely address inmate 602 appeals in violation of the Fourteenth Amendment.*fn1 (Doc. Nos. 1 at 3--5, 27 at 2.)

DISCUSSION

I. Legal Standard

To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Lazy Y. Ranch v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 554. A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 554 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235--36 (3d ed. 2004)).

Generally, the allegations in the complaint are accepted as true and construed in the light most favorable to the plaintiff. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim. Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996); see Twombly, 550 U.S. at 555.

In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Nevertheless, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

II. Eighth Amendment Claims

A. Plaintiff Fails to State a Claim for Deliberate Indifference to Medical Needs

Plaintiff's first cause of action against Defendants is for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment.

Denial or delay of medical care for a prisoner's serious medical needs may constitute a violation of the prisoner's Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104--05 (1976). An individual is liable for such a violation only when the individual is deliberately indifferent to a prisoner's known serious medical needs. Id.; see Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). To establish deliberate indifference, an individual defendant must have "purposefully ignore[d] or fail[ed] to respond to a prisoner's pain or possible medical need." McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). "Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights." Id. at 1059. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Furthermore, where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay ...


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