FINDINGS AND RECOMMENDATION RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (ECF No. 27)
FINDINGS AND RECOMMENDATION
Plaintiff Arthur Petrosyan ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 2, 2009. (ECF No. 1.) This action proceeds on Plaintiff's First Amended Complaint filed on June 15, 2009. (ECF No. 10.)
On May 16, 2011, Defendants Zamora, Ali, Grannis, and Youssef filed a Motion to Dismiss for failure to state a claim. (ECF No. 27.) Plaintiff filed an opposition on June 27, 2011 and Defendants replied on July 5, 2011. (ECF Nos. 29 & 31.)
II. PLAINTIFF'S ALLEGATIONS
Plaintiff's complaint alleges deliberate indifference to his serious medical injury in violation of the Eighth Amendment by all Defendants. Plaintiff alleges that on December 22, 2006, his left hand was injured. Four days later, on December 26, 2006, a doctor submitted an urgent request for Plaintiff to be seen by an orthopedic surgeon because Plaintiff's hand was fractured. Plaintiff was also prescribed pain medication. X-rays were performed on December 27, 2006.
Plaintiff was seen by the specialist on January 8, 2007. The specialist concluded that Plaintiff needed surgery. On January 10, 2007, Plaintiff asked to be seen by a doctor because the cast was hurting his hand, but no response was received. Defendant Youssef denied a request for surgery on January 16, 2007. On January 22, 2007, an appointment was made for Plaintiff to see the specialist again on January 29. Prison officials failed to take Plaintiff to that appointment.
On February 2, 2007, Plaintiff was examined by a doctor who submitted a request for Plaintiff to have surgery. On February 9, 2007, another doctor submitted a request for Plaintiff to receive an orthopedic consultation.
On March 21, 2007, Plaintiff was examined by an outside doctor who noted that the specialist had recommended surgery. The doctor ordered tests and nerve studies, and ordered a follow-up appointment. Plaintiff did not have any of the tests nor did he have a follow-up appointment.
On August 30, 2007, Plaintiff filed an administrative appeal requesting to be seen by a specialist about his wrist. Defendant Ali partially granted the appeal, but found that further treatment was not necessary.
On December 20, 2007, Defendant Zamora granted Plaintiff's second level appeal because Plaintiff had received a consultation with a specialist in January 2007. On March 6, 2008, Defendant Grannis denied Plaintiff's appeal at the third level finding that there were no unresolved issues.
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal at 1949 (citing Twombly at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 ...