FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendant J. Clerk Kelso's motion to dismiss / motion for summary judgment. Plaintiff opposes the motion. Upon review of the motion, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
ALLEGATIONS OF THE COMPLAINT
Plaintiff is a state prisoner currently incarcerated at Salinas Valley State Prison in Soledad, California. The incidents at issue occurred while plaintiff was incarcerated at California State Prison, Sacramento. Beginning in 2008, plaintiff alleges that he has suffered a variety of ailments, including a degenerative hip condition, arthritis, asthma and mobility issues, which require constant medical / nursing care. Plaintiff brings suit against a number of defendants, including Kelso, for violations of his Eighth Amendment rights.
As to Kelso, plaintiff's allegations are reproduced here in their entirety: Plaintiff is informed and believes and thereon alledges [sic], that defendant J. Clark Kelso (California Health Care Receivership Corp) and at all times relevant herein is in charge of all health care / treatment of prisoners incarcerated at all [California Department of Corrections and Rehabilitation "CDCR"] prisons / institutions. As the Health Care Receiver defendant J. Clark Kelso is and has been responsible for promulgating, supervising the promulgation of, monitoring compliance with, enforcing and/or supervising the enforcement of policies and procedures affecting the medical care of all prisoners within the CDCR. In this position defendant J. Clark Kelso, is and has been responsible for assuring that all prisoners receive proper medical care, including proper diagnosis and treatment. At all times mentioned defendant J. Clark Kelso was acting under color of state law, in the course and scope of duties, and is sued herein in his official capacity.
Compl. at 2. Plaintiff requests damages and injunctive relief.
RELEVANT PROCEDURAL BACKGROUND
Plaintiff initiated this action on September 17, 2010 against defendants Kelso, Dr. J. Bal, Dr. Sahota, Dr. A. Nangalama, CCII A. Masuret, CCI T. Woods, J. Rhoads NP, Dr. D. Pompan, Dr. D. Bright and Dr. Sepulveda.
On April 22, 2011, defendant Kelso filed a motion to dismiss.*fn1 Plaintiff filed an opposition to this motion on July 11, 2011. On July 15, 2011, Kelso filed a reply.
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 Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
On February 10, 2011, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir. 2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); Fed. R. Civ. P. 56(c). The moving party bears the burden of presenting authenticated evidence to demonstrate the absence of any genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002).
Defendant Kelso, sued in his official capacity as Receiver for the California prison medical health care system, filed a motion to dismiss / motion for summary judgment on the grounds that (1) the complaint fails to state a claim against him; (2) he is not subject to suit under 42 U.S.C. § 1983 because he is a federal official acting under federal law; and (3) as the Receiver, he is entitled to absolute quasi-judicial immunity. Plaintiff ...