The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint, filed May 25, 2010. (Dkt. No. 1.) On July 6, 2010, the previously assigned magistrate judge ruled that the complaint stated a cognizable Eighth Amendment claim as to defendant Chen. (Dkt. No. 5.) Pending before the court is defendant's October 12, 2010 motion to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 13, hereinafter "Mot.") Plaintiff filed an opposition to the motion, and defendant filed a reply. (Dkt. Nos. 15, 16.)
For the reasons set forth below, the undersigned will recommend that defendant's motion to dismiss be granted.
Plaintiff, an inmate at California State Prison-Solano, alleges that on May 21, 2009, he had surgery on his lumbar spine at Queen of the Valley Medical Center in Napa, California. (Dkt. No. 1 (hereinafter "Cmplt."), Supporting Facts at 1; see also Dkt. No. 13-1 at 3*fn1 .) Back at CSP-Solano, per his surgeon Dr. Huffman's recommendation, a comprehensive accommodation chrono dated May 29, 2009 stated that plaintiff was to be provided with a cane and a mobility vest for six weeks. (Cmplt., Supporting Facts at 1; Dkt. No. 13-1 at 4.) Plaintiff alleges that, over the next two months, he informed defendant Chen many times that he had not received his cane and vest. (Cmplt., Supporting Facts at 1.) Plaintiff alleges in his opposition that Dr. Chen always replied that "he [was] waiting for supplies." (Dkt. No. 15 (hereinafter "Opp.") at 6.) Plaintiff did not receive his cane and mobility vest until July 26, 2009, approximately two months after his surgery. (Id. at 5; see Dkt. No. 13-1 at 29 (inmate appeal decision granting plaintiff's request for medical supplies)).
Petitioner alleges that, as a result of this two-month delay, he suffered "pain, humiliation, emotional and mental stress, and harassment." (Opp. at 6.) He asserts that he "still continues to have pain and back spasms and tightness and continues to be treated by Dr. Chen and medical staff." (Id. at 8.) However, documents submitted with the complaint indicate that, at a June 8, 2009 follow-up appointment with Dr. Huffman, petitioner was reported to be "doing quite well and notes relief of his leg symptoms and minimal back pain." Dr. Huffman advised "him . . . just gradually return to his regular activities slowly to the point in about two months when he is back to normal activities." (Dkt. No. 13-1 at 5.) Similarly, a report summarizing plaintiff's August 29, 2009 consultation with Dr. Huffman notes that plaintiff 'has been doing quite well.
He continues to report no significant leg symptoms. His back has only occasional mild twinges of pain. He has returned to doing normal physical activities including sit-ups, light weight squats and other activities." (Dkt. No. 13-1 at 8.) Dr. Huffman further reported that plaintiff was healing from surgery "as expected. Nothing inappropriate." (Id.) These follow-up reports do not mention plaintiff's failure to receive his cane or mobility vest, or any effects stemming from same.
DISCUSSION I. Legal Standard
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, 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 may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
II. Eighth Amendment Claim
Plaintiff's cause of action against defendant is for deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment.
Denial or delay of medical care for a prisoner's serious medical needs may constitute a violation of the prisoner's Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An individual is liable for such a violation only when the individual is deliberately indifferent to a prisoner's known serious medical needs. Id.; see Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). To establish deliberate indifference, an individual defendant must have "purposefully ignore[d] or fail[ed] to respond to a prisoner's pain or possible medical need." McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). "Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights." Id. at 1059. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Furthermore, where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay ...