The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS ORDER FOR THIS DISMISSAL TO COUNT AS A STRIKE PURSUANT TO 28 U.S.C. §1915(g)
Plaintiff Gust Marion Janis ("Plaintiff") is a federal prisoner proceeding pro se in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors and pursuant to 28 U.S.C. § 1346(b) (the Federal Tort Claims Act hereinafter "FTCA"). The FTCA provides a limited remedy for torts committed by federal employees.
Dismissal of the Fourth Amended Complaint ("4thAC") was previously sought under Rule 12(b)(6) of the Federal Rules of Civil Procedure*fn1 as: (1) the FTCA judgment bar, 28 U.S.C. § 2676, barred Plaintiff's Bivens action in light of the judgment on the FTCA claim Plaintiff previously filed in the Central District of California; (2) the FTCA claim was barred by res judicata in light of the judgment entered in the Central District Case; (3) certain of the Bivens claims were barred by the two-year statute of limitations; and (4) the allegations in the 4thAC were insufficient to state plausible Bivens claims. (Doc. 92, Prior MTD, 1:20-2:3.) Dismissal was also sought on the grounds that Plaintiff failed to exhaust administrative remedies for some of his Bivens claims as required by 42 U.S.C. § 1997e(a) and based on improper venue pursuant to Rule 12(b)(3) since most of the allegations in the 4thAC occurred at the United States Penitentiary at Lompoc, California -- which is not located in the Eastern District of California. (Id., 2:4-9.) Finally, Defendants argued that individuals named as defendants in the 4thAC who had neither been served, nor waived service, were entitled to dismissal for insufficient service of process pursuant to Rule 12(b)(5) and for untimely service pursuant to Rule 4(m). (Id., 2:10-13.) This motion was granted in part and denied in part, and Plaintiff was given leave to file a fifth amended complaint to attempt to state a claim against Defendants John De Vere, Christine Milligan-Moore, Maria Orozco, Rey Rijos, Paul Schultz, Jerilyn Spencer, and Thomas Stahley ("Defendants")*fn2 for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment. (Doc. 135, O on Prior MTD.)*fn3
On April 25, 2011, Plaintiff filed the Fifth Amended Complaint ("5thAC"). (Doc. 136.) Shortly thereafter, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6), alleging that the 5thAC fails to state a claim for deliberate indifference to Plaintiff's serious medical needs by Defendants in violation of the Eighth Amendment. (Doc. 137.) Plaintiff filed an opposition (Doc. 142) and Defendants filed a reply (Doc. 143). This motion was deemed submitted pursuant to Local Rule 78-230 upon the filing of the reply.*fn4 For the reasons discussed below, Defendants' motion to dismiss is granted, the 5th AC is dismissed with prejudice, and the Clerk of the Court is directed to close the case.
II. Motion to Dismiss under F.R.C.P. 12(b)(6) -- Standards
Under Rule 12(b)(6) a claim may be dismissed because of a plaintiff's "failure to state a claim upon which relief can be granted." A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory, or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), the court accepts the complaint's material allegations of fact as true and construes these facts in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "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.
The plausibility standard is not akin to a probability requirement, but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. . . .
Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.
Iqbal, 129 S.Ct. at 1949-50 (internal cites and quotes omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." ...