The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
AMENDED ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding in forma pauperis and with appointed counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. Presently pending for decision by this court is defendants' motion to dismiss plaintiff's First Amended Complaint. The motion was heard on August 13, 2009, by the magistrate judge previously assigned this case. This action was assigned to the undersigned magistrate judge on February 9, 2010.*fn1
On September 3, 2010, this court issued an Order and Findings and Recommendations addressing all pending matters. However, on September 22, 2010, the court vacated its ruling in light of the Ninth Circuit's opinion in Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), filed on September 8, 2010. The court now issues this Amended Order and Findings and Recommendations.
Plaintiff Nyles Lawayne Watson filed this action in the United States District Court for the Northern District of California, on August 28, 2007. The case was transferred to the Eastern District on September 10, 2007. On June 15, 2009, with leave of court, plaintiff filed the operative First Amended Complaint ("FAC" or "complaint"). (Dkt. No. 65.)
The FAC alleges three legal claims against eight defendants. After motions to dismiss were filed by defendant Naku (Dkt. No. 67), and the other defendants (Dkt. No. 66), plaintiff voluntarily dismissed some claims and defendants (Dkt. Nos. 74, 81 and 82). As now framed, plaintiff's FAC alleges: (1) deliberate indifference to plaintiff's serious medical needs, constituting cruel or unusual punishment in violation of the Eighth Amendment, against former California State Prison-Solano ("CSP-S") Warden D.K. Sisto, CSP-S physician and Chief Medical Officer ("CMO") Traquina, and CSP-S physicians Tan and Rohrer; (2) retaliation for filing administrative grievances, in violation of the First Amendment, against CSP-S physicians Traquina and Tan; and (3) discrimination, in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, against the California Department of Corrections and Rehabilitation ("CDCR"), CSP-S, Warden Sisto and CMO Traquina. (FAC, at pp. 18-21.)*fn2
Plaintiff seeks compensatory and punitive damages, injunctive relief, costs and fees. (FAC, at pp. 21-22.)
II. PLAINTIFF'S FACTUAL ALLEGATIONS
Plaintiff contends that, "[f]rom 2002 through and including the present day, [he] has received constitutionally inadequate medical care" for his lower back condition while incarcerated at CSP-S. (FAC, at ¶ 19.) Regarding the period prior to 2002, when plaintiff was incarcerated at CSP-Sacramento ("CSP-SAC"), plaintiff makes the following factual allegations: On May 12, 1998, plaintiff strained his back (id. at ¶ 20); he was prescribed ibuprofen and taught leg exercises to loosen his back muscles (id.); on June 25, 1998, a physician ordered x-rays of plaintiff's lumbar spine (the results are not noted) (id. at ¶ 21); on August 7, 1998, a physician noted that plaintiff had re-injured his lower back and that he had a strain at his L5 disc (id.); on September 7, 1999, plaintiff complained of lower back pain after twisting his back while getting out of bed and notified a physician that his back had been hurting for years (id. at ¶ 22); and on December 22, 2000, plaintiff complained of chronic lower back pain (id. at ¶ 23).
Plaintiff was transferred to CSP-S on October 2, 2001, and alleges that he stated at his initial health interview that he suffered from back pain. (Id. at ¶ 24.) Plaintiff states that his medical records were timely transferred from CSP-SAC. (Id.) On July 26, 2002, plaintiff was examined for back pain at CSP-S by defendant physician (later CMO) Traquina, who prescribed naproxen. (Id. at ¶ 25.) On September 24, 2002, plaintiff filed an administrative grievance alleging inadequate medical care for his lower back pain. (Id. at ¶ 26.) X-rays were taken on October 23, 2002. Traquinia subsequently diagnosed plaintiff with degenerative disc disease, ordered an orthopedic consultation and a back brace, and instructed plaintiff to return in four weeks. (Id. at ¶ 27.) Plaintiff was examined by an orthopedic specialist, Dr. Kofoed, on November 30, 2002, who prescribed methadone and ordered an MRI. (Id. at ¶ 29.) On January 7, 2003, Dr. Traquina ordered a neurology consultation, which was obtained on January 28, 2003. (Id. at ¶¶ 30, 31.)
An MRI was conducted on February 24, 2003, which revealed marked disc dessication, disc space narrowing, and disc bulging at the L5-S1 level, and minimal disc desiccation and bulging at L4-5. (Id. at ¶ 32.) Plaintiff alleges that these findings reflected "Modic Type 1" changes at L5-S1, presenting a higher likelihood of surgical success at that time than would later be possible after further deterioration of plaintiff's lumbar spine. (Id. at ¶ 32.) Plaintiff filed an administrative grievance on March 24, 2003, alleging that he was in constant pain and needed to see a surgeon. (Id. at ¶ 35.) Plaintiff states that on April 19, 2003, he was "granted ADA status" and a medical chrono was issued noting that plaintiff was not capable of prolonged standing, walking or sitting for longer than thirty minutes. (Id. at ¶ 35.) On May 13, 2003, plaintiff requested a transfer to California Medical Facility ("CMF") as a "reasonable accommodation" in order to obtain therapy and surgery. (Id. at ¶ 38.)
On March 15, 2003, orthopedist Dr. Kofoed referred plaintiff to a neurosurgeon to evaluate whether plaintiff was a surgical candidate. (Id. at ¶ 34.) However, six months later, when outpatient services attempted to schedule the neurosurgery consultation, the February 2003 MRI had become outdated. (Id. at ¶ 41.) Plaintiff was again referred for an MRI, which was conducted on April 8, 2004, showing significant deterioration since the last MRI, classifiable as "Modic Type 2" changes less correctable by surgery and at a higher degree of risk. (Id. at ¶¶ 47, 50.) Plaintiff was seen by another orthopedist specializing in spinal surgery (Dr. Farr) on June 16, 2004, who recommended pain management and epidural injections. (Id. at ¶ 54.)
Meanwhile, plaintiff was referred to physical therapy on February 26, 2003. (Id. at ¶ 33.) However, the referral was not implemented until May 24, 2004, fifteen months later, at which point plaintiff claims it was less effective than it would have been had he received physical therapy earlier. (Id. at ¶ 52.)
Plaintiff sought to expedite his care by a letter written October 19, 2003, to the Chief Medical Officer, and by filing administrative grievances on February 19, 2004, March 23, 2004, and April 28, 2004. (Id. at ¶¶ 42, 48, 49, 51.) Both Dr. Traquina and Dr. Tan signed "chronos" limiting plaintiff's activities (id. at ¶¶ 44, 45), but allegedly both failed to timely implement plaintiff's referrals for specialized care (see generally id. at ¶¶ 25-53).
Plaintiff was seen by Dr. Noriega and Dr. Rohrer in July 2004, but allegedly neither sought to implement the June 2004 recommendations of Dr. Farr. (Id. at ¶ 55.) Plaintiff filed an administrative grievance on September 2, 2004, seeking implementation of Dr. Farr's recommendations. (Id. at ¶ 56.) Thereafter, Dr. Rohrer examined plaintiff and ordered epidural injections, and Dr. Noriega granted plaintiff's grievance, but plaintiff did not begin receiving epidural injections until January 14, 2005. (Id. at ¶ 57-61.)
A new MRI was ordered on January 31, 2005, but not obtained until August 16, 2005. (Id. at ¶¶ 62, 66.) Despite an August 2005 medical appraisal which plaintiff alleges stated that he needed to be referred to a neurosurgeon, Dr. Noriega examined plaintiff in September and December 2005 without making such a referral. (Id. at ¶ 67, 69.)
Plaintiff was treated by Dr. Naku from November 2005 to June 2006, by Dr. Tan in May 2006, and by Dr. Rohrer in July and August 2006, without any of those physicians making further referrals. (Id. at ¶¶ 70, 71.) Plaintiff filed administrative grievances in August 2005 and August 2006. (Id. at ¶ 65, 73.) Plaintiff was again seen by Dr. Tan in December 2006 who referred him for further evaluation by Dr. Farr in May 2007. (Id. at ¶ 74.) Plaintiff filed another administrative grievance in December 2006. (Id. at ¶ 75.) Plaintiff was seen by Dr. Tan in March 2007, and by Dr. Rohrer in May 2007, and finally scheduled for his fourth MRI on August 2, 2007. (Id. at ¶ 76-80.)
Plaintiff filed his initial complaint in this action on August 28, 2007, alleging that his back impairment grew more severe since 2002 due to defendants' lack of adequate care, resulting in irreversible damage to his spine and chronic pain that is now less amenable to surgical intervention.
On September 27, 2007, after plaintiff filed the instant action, Dr. Tan rescinded plaintiff's prescription for methadone pending further medical assessment. (Id. at ¶ 82.) Dr. Tan examined plaintiff on October 4, 2007. Plaintiff filed administrative grievances on October 2 and 4, 2007. (Id. at ¶¶ 82, 83.)
On May 12, 2008, plaintiff was seen by Dr. Huffman, an orthopedic surgeon specializing in spinal surgery. (Id. at ¶ 86.) Dr. Huffman recommended a regimen of physical therapy, pain medication and epidural injections, with a follow-up appointment in three months to evaluate for surgery, but advised plaintiff that there was only a 70% chance that surgery would be successful and it would not eliminate plaintiff's pain. (Id.) Plaintiff did not commence physical therapy until September 13, 2008, and did not receive a follow-up appointment with Dr. Huffman. (Id. at ¶ at 96, 98.)
Meanwhile, in May and June 2008, plaintiff filed three administrative grievances alleging that medical staff was making plaintiff wait for excessively long periods of time to receive his medications, in violation of chronos reflecting plaintiff's limitations in sitting, standing and walking. (Id. at ¶ 87-89.) "On June 25, 2008, Dr. Chen issued a chrono stating that Watson was to receive his narcotic medication after his diabetic medication and that he was not to be subjected to prolonged walking, sitting, or standing for more than 30 minutes." (Id., at ¶ 90.) Thereafter, "[o]n October 9, 2008 . . . Dr. Traquina issued a new chrono for Watson, replacing the chrono that Dr. Chen had issued . . . removed the direction allowing Watson to obtain his narcotic medication after his diabetic medication and replaced the direction referring to no prolonged standing, sitting, or walking for greater than 30 minutes with a direction omitting the restriction on prolonged sitting." (Id. at ¶ 97.)
A. LEGAL STANDARDS FOR MOTION TO DISMISS
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.
B. CLAIMS PURSUANT TO 42 U.S.C. § 1983 1. INJUNCTIVE RELIEF
Defendants contend that this court lacks jurisdiction over plaintiff's claims for equitable and injunctive relief because plaintiff may only pursue these matters as a member of the class in Plata v. Schwarzenegger, 2005 WL 2932253 (N.D. Cal. 2005). Plaintiff responds, in pertinent part, that the Plata class action does not foreclose his independent pursuit of equitable relief in the form of treatment for his discrete medical needs, but precludes only individual actions that seek system-wide injunctive relief also sought by the Plata class.
As set forth in his "Prayer for Relief," plaintiff seeks the following equitable and injunctive relief (FAC, at p. 21):
(a) Issue permanent injunctive relief restraining defendants and their officers, agents, directors, successors, employees, attorneys, or representatives from further violations of the First, Eighth, and Fourteenth Amendments to the United States Constitution referenced herein as to the subject of Watson's claims for relief, including but not limited to enjoining defendants from policies, practices, actions, and omissions such as those alleged herein, requiring the establishment of appropriate and effective means to prevent future such violations, and requiring defendants to provide Watson with all necessary and appropriate medical care; . . . (f) Retain jurisdiction of this case until defendants have fully complied with the orders of this Court, and there is a reasonable assurance that defendants will continue to comply in the future absent continuing jurisdiction . .
The factual allegations of the complaint provide additional detail regarding the equitable relief plaintiff seeks. See FAC, ¶ 98 (stating that as of the filing date of the FAC, plaintiff had "not been re-evaluated by Dr. Huffman or a competent neurosurgeon [to determine whether surgery is advisable], he has not been provided with additional physical therapy, and he continues to have difficulty obtaining his pain medication with regularity"); see also id. at ¶ 96 (stating that "[a]lthough Watson received . . . three physical therapy sessions, Watson never received a follow-up appointment with Dr. Huffman per his recommendation. Thus, Dr. Huffman was unable to re-evaluate whether surgery was advisable for Watson.").
The court takes judicial notice*fn3 of the Plata "Stipulation for Injunctive Relief." (Dkt. No. 66-3 ("Stipulation").) Plata is a class action of inmates in California state prisons with serious medical needs. (Id. at ¶ 1.) Inmates with serious medical conditions who are housed at CSP-S, where plaintiff has been housed at all relevant times, is expressly covered by Plata. (Id. at ¶ 5.) Thus, plaintiff, a CSP-Solano inmate with serious medical needs, is necessarily a member of the Plata class. (Id. at ¶ 5.) The Stipulation requires that all members of the class are to receive constitutionally adequate medical care consistent with applicable policies and procedures in effect as of February 2002. (Id. at ¶ 4.) Any disputes as to the adequacy of the policies and procedures are to be resolved pursuant to the dispute resolution procedures set forth in the Stipulation. (Id. at ¶¶ 26-28.) Disputes relative to the treatment of individual prisoners are ...