The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [ECF No. 98]
On March 16, 2011, Plaintiff Charles Johnson, a state prisoner proceeding pro se and in forma pauperis, filed a Second Amended Complaint pursuant to 42 U.S.C. § 1983 against seven prison officials at the Calipatria State Prison. (ECF No. 97 ("SAC").) Plaintiff sues Defendants in their individual capacities. (Id. at 2-3.) He alleges Defendants conspired to delay or deny medical care from November 21, 2007 through January 2, 2008. (Id. at 1, 12-17.) He further contends Defendants violated his constitutional rights by failing to transport him to physical therapy appointments in waist chains as required by his medical chronos. (Id. at 5-11.) Lastly, he alleges Defendants retaliated against him for lodging complaints by prematurely transferring him out of special needs housing.*fn1 (Id. At 16-18.) Plaintiff seeks damages and an injunction to prevent Defendants from denying him medical treatment. (Id. at 21.)
On March 30, 2011, Defendants filed a Motion to Dismiss Plaintiff's Second Amended Complaint. (ECF No. 98 ("MTD").) Plaintiff filed an Opposition on May 2, 2011. (ECF No. 104 ("Pl.'s Opp'n").) On May 17, 2011, Defendants filed a Reply in response to Plaintiff's Opposition. (ECF No. 105 ("Defs' Reply").) After thorough review of the parties' papers and all supporting documents, IT IS HEREBY ORDERED Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
A. Plaintiff's Specific Factual Allegations
In September 2006, while incarcerated at Calipatria State Prison, Plaintiff suffered a stroke, resulting in paralysis and weakness in the right side of his body. (SAC at 4.) Plaintiff's physical deformities are "extremely noticeable." (Id. at 13.) He is unable to move his right arm, wrist or fingers. (Id.) He also suffers from "expressive aphasia," a condition that makes it difficult for him to express himself. (Id; Exhibit A.) After his stroke, Plaintiff was housed in the Outpatient Housing Unit ("OHU"), a facility for inmates who require constant medical attention, and was authorized the permanent use of a wheelchair. (Id. at 11, 24.)
Defendant Dr. D. Hjerpe, Plaintiff's primary care physician, proscribed physical therapy sessions at Pioneers Memorial Hospital to treat the residual symptoms of his stroke. (Id. at 4.) In order to accommodate his disability, Plaintiff alleges a "medical chrono" was issued authorizing medical staff to transport Plaintiff to his appointments in waist chains in an ambulance. (Id. at 5; Exhibits A, K.) Plaintiff claims the chrono "exempted him from the placement of the black box," a cover placed over handcuffs to prevent an inmate from picking the lock. (Id.) Accordingly, prior to November 21, 2007, Plaintiff had been transported to physical therapy in waist chains in an ambulance or van with a wheelchair lift. (Id. at 26-27.)
On November 21, 2007, Defendant A. Figueroa was assigned to transport Plaintiff to his physical therapy appointment. (Id. at 5.) Plaintiff waited for transportation in his wheelchair. (Id. at 24.) Despite Plaintiff's "obvious" physical deformities, Defendant Figueroa attempted to handcuff him. (Id. at 24-25.) Notwithstanding his medical chrono, Plaintiff contends Figueroa refused to transport him unless he submitted to wearing handcuffs and a black box. (Id. at 5.) Because Plaintiff was unable to move his right arm on his own, Defendant Figueroa lifted his arm into place to secure the restraints. (Id. at 24-25.) Plaintiff informed Figueroa he had been transported to numerous physical therapy appointments without handcuffs and a black box; but in order to attend physical therapy, Plaintiff submitted to use of the restraints. (Id. at 5.) After five minutes, however, the pain was so severe that Plaintiff insisted Figueroa remove the black box. (Id.) Plaintiff claims the black box caused his wrist to "go numb and swell up." (Id. at 9.) Figueroa consulted with her immediate supervisor, Defendant Sargent Preciado, who instructed her to use the restraints. (Id. at 6.) Because Plaintiff refused to allow her to do so, Figueroa did not transport him to his appointment. (Id.)
On December 4, 2007, Defendant Hjerpe became aware of the incident and Plaintiff's concerns regarding the black box. (Id. at 7.) Thus, Dr. Hjerpe issued a second medical chrono exempting Plaintiff from the black box restraints. (Id. at 13.) That same day, Plaintiff alleges he suffered "another stroke like incident" -- an episode of muscle spasms so painful and severe that he was taken to the emergency room. (Id. at 6-7; Exhibit C.) Plaintiff claims he had never suffered an episode of muscle spasms prior to November 21, 2007, nor has he experienced one since resuming physical therapy. (Id. at 6-7.) Dr. Hjerpe was unable to ascertain the cause of the muscle spasms. (Id. at 7.)
On December 5, 2007, Defendant T. Davis was assigned to transport Plaintiff to his physical therapy appointment. (Id.) Despite Plaintiff's medical needs, Plaintiff alleges Davis also refused to transport him unless he submitted to use of the black box. (Id.) Plaintiff informed Defendant Davis of Dr. Hjerpe's December 4, 2007 chrono and complained that the black box caused him severe pain. (Id.) Defendant Davis contacted his supervisor, Defendant Sargent Preciado. (Id.) Notwithstanding the medical chrono, Sargent Preciado ordered Davis not to transport Plaintiff unless Plaintiff submitted to use of the black box. (Id.) Again, Plaintiff was not transported to his appointment.
Later that day, Defendant G. Stratton, the transportation unit supervisor, was notified of Plaintiff's complaints regarding use of the black box. (Id. at 8.) Plaintiff alleges Defendant Stratton issued an order directing transportation officers to disregard Plaintiff's medical chrono and transport him in accordance with standard policies. (Id.)
Medical staff also was notified of the December 5, 2007 incident. Though Dr. Hjerpe was aware of Plaintiff's physical disabilities and complaints regarding the black box, he refused to intervene on Plaintiff's behalf. (Id. at 9.) In addition, Defendant E. Orduno, a nurse, was aware of Plaintiff's condition and complaints, but stopped scheduling his physical therapy appointments. (Id. at 10.) As a result, Plaintiff contends medical staff interfered with his recovery. (Id.)
Plaintiff then wrote Defendant R. Delgado, Associate Warden of Health Care Operations at Calipatria State Prison, regarding his medical treatment. (Id. at 10.) Despite knowledge of Plaintiff's "heightened medical needs," Delgado found the transportation officers were acting appropriately and took no further action. (Id. at 11.) On December 20, 2007, Plaintiff's administrative appeal regarding his treatment was granted at the second level of review. (Id. at 18.) Thus, Plaintiff resumed physical therapy on January 2, 2008. (Id. at 1.) However, as a result of Defendants' conduct, Plaintiff alleges he suffered unnecessary pain. (Id. at 18.)
Finally, Plaintiff alleges both the November 21, 2007 and the December 5, 2007 incidents were the result of prison staff conspiring to deny him medical care. (Id. at 12-15.) Specifically, Plaintiff contends Defendants Stratton, Delgado, Orduno and Hjerpe conspired to cover up transportation officers' refusals to transport him to physical therapy in waist chains as proscribed by medical chrono. (Id. at 12.) In furtherance of this alleged conspiracy and in retaliation for Plaintiff's complaints regarding his treatment, Dr. Hjerpe rescinded Plaintiff's long-term care status and permanent OHU placement on January 9, 2008. (Id. at 16.) Plaintiff contends his medical records evidence his inability to physically care for himself at the time Dr. Hjerpe rescinded his long-term care status. (Id. at 17.) As a result of the alleged conspiracy, on March 7, 2008, Plaintiff was transferred to Kern Valley State Prison, where he currently resides. (Id. at 4, 16-17.)
Plaintiff filed his initial Complaint on July 11, 2008. (ECF No. 1.) The Complaint included the following claims: (1) a violation of Plaintiff's Eighth Amendment right to medical care; (2) a violation of his Eighth Amendment right to be free from cruel and unusual punishment; (3) a violation of his First Amendment right to be free from retaliation for exercising his constitutional rights; and (4) injunctive relief. (Id. at 4-6.) Plaintiff sued ten Defendants in both their individual and official capacities. On January 2, 2009, Defendants filed a Motion to Dismiss the Complaint alleging Plaintiff's denial of medical care and retaliation claims were not exhausted, and that Defendants could not be sued in their official capacity. (ECF No. 15 at 1-2.)
On April 13, 2009, Magistrate Judge Jan Adler filed a Report and Recommendation Order granting in part and denying in part Defendants' Motion to Dismiss. (ECF No. 22.) Specifically, Judge Adler recommended the Court find Plaintiff's retaliation claim unexhausted. On May 4, 2009, Plaintiff filed an objection to the Report and Recommendation arguing his retaliation claim was properly exhausted. (ECF No. 23.) The objection included an inmate appeal Plaintiff filed regarding retaliation. (Id. App. A at 1-2.)
On July 7, 2009, District Judge Marilyn Huff denied Defendants' Motion to Dismiss. (ECF No. 26.) The Court found the inmate appeal documents previously unavailable to Judge Adler demonstrated Plaintiff exhausted his retaliation claim. (Id. at 5-6.) On March 5, 2010, the case was reassigned to Magistrate Judge Louisa S Porter following both parties' consent to jurisdiction by a United States Magistrate Judge. (ECF No. 58.)
On June 30, 2010, Plaintiff filed his First Amended Complaint, raising the following claims: (1) Defendants conspired to delay or deny him access to medical care; (2) Defendants used excessive force in violation of the Eighth Amendment; and (3) a claim for injunctive relief. (ECF No. 72.) Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint on September 3, 2010. (ECF No. 82.) On January 25, 2011, the Court granted in part and denied in part the Motion to Dismiss. (ECF No. 94.) The Court granted the motion as to Plaintiff's denial of access to medical care claim and his request for injunctive relief, but denied the motion to dismiss his excessive force claim. (Id. at 14.)
Plaintiff filed his Second Amended Complaint on March 16, 2011. (ECF No. 97.) The complaint alleges: (1) Defendants conspired to deny Plaintiff medical treatment, cover up the interference with Plaintiff's medical needs, and have him transferred; (2) Defendants were deliberately indifferent to Plaintiff's medical needs in violation of his Eighth Amendment rights; (3) Defendant Figueroa violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment; (4) Defendants retaliated against Plaintiff in violation of his First Amendment rights;and (5) a request for injunctive relief. (SAC at 4-18.) Defendants filed a Motion to Dismiss Plaintiff's Second Amended Complaint on March 30, 2011. (ECF No. 98.)
A. Rule 12(b)(6) Motions to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). The old formula -- that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007).
A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 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." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Bell Atl. Corp., 550 U.S. at 563 n.8. A dismissal under Rule 12(b)(6) is generally proper only where there "is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
The court need not accept conclusory allegations in the complaint as true; rather, it must "examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, 382 F.3d at 973 (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) (stating that on Rule 12(b)(6) motion, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged"). "Nor is the court 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 a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [i]s proper . . . ." Parks Sch. of Bus., 51 F.3d at 1484 (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)). The court may also consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading . . . ." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Stone v. Writer's Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 ...