The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner at the California Medical Facility ("CMF"), proceeding without counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint, filed September 15, 2010 (Dkt. No. 64), based on plaintiff's allegations that he was denied adequate treatment for his acquired Human Immunodeficiency Virus ("HIV"). Presently pending is defendants' motion to dismiss plaintiff's request for injunctive relief, pursuant to defendants' contention that such relief is subsumed by the June 12, 2002 Stipulation for Injunctive Relief reached in the class action, Plata v. Schwarzenegger, Case No. C-01-1351 THE (N.D. Cal. 2001). On the same basis, defendants seek dismissal of defendant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation ("CDCR").
Plaintiff has not filed an opposition to defendants' motion. After the time for filing his opposition had passed, the court directed plaintiff to file such opposition within thirty days, and informed him that failure to do so would be deemed a statement of non-opposition to the motion, and may result in the dismissal of this action for failure to comply with a court order. (Dkt. No. 76.) Plaintiff did not respond to the court's order.*fn1
Because defendants' motion seeks only a partial dismissal of plaintiff's case, the court addresses the merits of the motion, and declines to recommend dismissal of the entire action at this time. Rather, the court recommends that defendants' motion be granted in part, and that this case proceed on a narrowed basis.
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F. 3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. 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. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F. 2d 1542, 1555 n.19 (9th Cir.1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F. 2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F. 2d 266, 268 (9th Cir. 1982). DISCUSSION
In the operative First Amended Complaint ("FAC" or "complaint") (Dkt. No. 64), plaintiff contends that, upon his transfer from California State Prison-Corcoran to CMF, defendants improperly discontinued the testosterone treatments plaintiff had been receiving to combat metabolic dysfunction symptoms associated with his HIV and Highly Active Antiretroviral Therapy ("HAART"). This court found that the complaint may state a potentially cognizable Eighth Amendment claim for deliberate indifference to plaintiff's serious medical needs, against defendants CMF physicians Dr. U. Pai, Dr. Nicholas Aguilera, and Dr. Joseph A. Bick, and, less clearly, but "for present purposes," against the CDCR Secretary, based on plaintiff's general claims for injunctive relief. (See Dkt. No. 66 at 2-3, noting plaintiff's general challenge to an "official state policy" or "an arbitrary policy, pattern, practice or custom" that may underlie the decisions of the individual defendants to discontinue plaintiff's treatments, as set forth in the FAC, at 8.) The court further noted (Dkt. No. 66 at 4):
Curiously, plaintiff does not expressly seek injunctive relief to obtain reinstatement of his testosterone treatments. The court is unable to determine, based on the allegations of the FAC, whether this is because plaintiff is now receiving such treatments, or because he has determined that such treatments are no longer warranted. Nonetheless, for present purposes and in the interests of expediting this four-year-old case, the court will construe plaintiff's request for injunctive relief, as well as his general request for "[s]uch other relief as [the] court deems just, equitable and fair" (FAC, at 11), to include, if applicable, a request for reinstatement of plaintiff's testosterone treatments.
After defendants filed an answer to the complaint, plaintiff filed a "response" in which he stated that he was indeed "ask[ing] this court to order reinstatement of the previously prescribed treatment." (Dkt. No. 75 at 3.)
Defendants contend that plaintiff may not pursue any injunctive relief in this action, asserting that plaintiff's general challenge to CMF policies, as well as his specific request to obtain the subject treatment, are subsumed by the Plata class action. Pursuant to this argument, defendants also seek dismissal of the CDCR Secretary.
The court takes judicial notice*fn2 of the Plata "Stipulation for Injunctive Relief." (Dkt. No. 73-1 ("Stipulation" or "Stip.")); see also Plata v. Schwarzenegger, 2005 WL 2932253 (N.D. Cal. 2005) (Appointment of Receiver). Plata is a class action of inmates in California state prisons with serious medical needs. (Stip. at ¶ 1.) Plaintiff, a CMF 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 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 these 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 to be pursued through the administrative grievance process, and then through private mediation with defendants. (Id. at ¶ 30.) These procedural requirements may be suspended only for inmates "requiring urgent medical care." (Id. at ¶ 7.)
The Ninth Circuit has held that a plaintiff who is a member of a class action for equitable relief from prison conditions may not maintain a separate, individual suit for relief that is also sought by the class, but may pursue equitable relief that "exceeds," "goes beyond" or is "not covered" by the class action. Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) (reversing district court's dismissal of plaintiff's claims for relief that were not included in a class action challenging overcrowding); accord, McNeil v. Guthrie, 945 F.2d 1163, 1166 n.4 (10th Cir. 1991) ("class members may bring individual actions for equitable relief when their claims are not being litigated within the boundaries of the class action"); Rivera v. Bowe, 664 F. Supp. 708, 710 (S.D.N.Y. 1987) ("it would be improper to foreclose the parties from pursuing separate claims where such claims are not encompassed and litigable within the original action," citing Crawford). In contrast, individual damages claims may clearly be ...