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Mario K. Moore v. Michael Mcdonald

August 22, 2011

MARIO K. MOORE, PLAINTIFF,
v.
MICHAEL MCDONALD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed May 19, 2011. Defendant argues that this action should be dismissed because plaintiff is a member of a class of claimants covered under a pending class action lawsuit in Plata v. Schwarzenegger, Case No. C-01-1351 THE (N.D. Cal. 2001). Defendant also argues that he, as the Warden, does not have the power to change the policies or procedures relating to the delivery of medical care in the California prison system because all such powers are vested exclusively in the court-appointed receiver.

After carefully considering the record, the undersigned recommends that defendant's motion be denied.

II. Legal Standards for Motion to Dismiss

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).

III. Discussion

A. Plaintiff's Claims

This action is proceeding on the original complaint filed December 27, 2010. The only defendant is Michael McDonald, the Warden at High Desert State Prison ("HDSP"). Plaintiff alleges that he has not received adequate medical care for his diabetes. In particular, plaintiff alleges that he has not received the proper doses of insulin, which caused him to suffer fatigue, shortness of breath and difficulty seeing. Plaintiff also alleges that he has not received a proper diabetic diet. Plaintiff claims that he is served meals with a high sugar content.

Plaintiff seeks injunctive relief only. In particular, plaintiff requests that he be transferred to either San Quentin or "Vacaville State Prison." Plaintiff also requests that the court order defendant to "administer care that is consistent with the care a diabetic receives in society."

B. Analysis

Defendant argues that plaintiff may not pursue any injunctive relief in this action, asserting that plaintiff's claims and request for relief are subsumed by the Plata class action.

The court takes judicial notice*fn1 of the Plata "Stipulation for Injunctive Relief." (Dkt. No. 28-1 ("Stipulation" or "Stip.")). Plata is a class action of inmates in California state prisons with serious medical needs. (Stip. at ¶ 1.) Plaintiff, a HDSP inmate with serious medical needs, is necessarily a member of the Plata class. (Id. at ¶ 1.) 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 ...


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