The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT (Doc. 29)
Plaintiff Norman L. Pimentel ("Plaintiff") brings this action for damages against the County of Fresno and Jose Flores ("Defendants"). Plaintiff initiated this action in the California Superior Court, County of Fresno, on March 20, 2009. (See Doc. 8 at 20). Plaintiff filed a second amended complaint ("SAC") on March 24, 2011.
Defendants filed a motion to dismiss the SAC on March 24, 2011. (Doc. 29).
Plaintiff filed opposition to Defendants' motion on May 9, 2011. (Doc. 31).
From March 18, 2008 through August 25, 2008, Plaintiff was a 67 year-old inmate and pre-trial detainee in the Fresno County Jail. As Plaintiff had previously been an inmate, the County of Fresno knew Plaintiff was suffering from pyschiatric and seizure disorders. Initially, Plaintiff was placed in an isolated, padded cell without furniture commonly known as a "rubber room." After about three days, Plaintiff was assigned Plaintiff to a cell with bunk beds that did not have any ladder or other device to assist Plaintiff in climbing onto or off of the top bunk.
On or about April 25, 2008, Plaintiff was trying to descend from the top bunk when he fell to the concrete floor where his L2 vertebrae was fractured; he was rendered momentarily unconscious. On April 30, 2008, Plaintiff was taken to the hospital. Surgery was performed on Plaintiff on May 1, 2008. Plaintiff requested medical care, physical therapy, and diet as prescribed by his physicians as necessary, but was denied such care.
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).
The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id. at 908.
Count Four of the SAC purports to assert a section 1983 claim against the County based on failure to provide physical therapy, a special diet, and medications prescribed by Plaintiffs' physician after Plaintiff fractured his back. (SAC at 16). Plaintiff advances the conclusory allegation that the County failed to provide training and supervision regarding medical treatment of inmates and pre-trial detainees at the Jail, and that the County maintained a "longstanding official policy of classifying and assigning inmates with psychological or psychiatric disorders to cells with upper beds without ladders." (SAC at 17). The Memorandum Decision dismissing Plaintiff's first amended complaint provided the following analysis of its pleading deficiencies:
The Ninth Circuit employs a four-step framework for resolving claims of Mortimer deliberate indifference against a municipal entity. [ v. Baca, 594 F.3d 714, 717-18 (9th Cir. 2010)]. In order to prevail on a deliberate indifference claim against a municipality, a plaintiff must establish: (1) violation of a constitutional right; (2) the existence of a municipal policy; (3) that the risk of constitutional violations under the policy is so likely that the need for an improved policy is obvious; and (4) that the challenged policy
constitutional injury ...