The opinion of the court was delivered by: The Honorable David O. Carter, Judge
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective address of record in this action on this date.]
Date:____________ Deputy Clerk:___________________________________
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT
G (IN CHAMBERS): DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Before the Court is Defendant Alvaroc Traquina, MD., ("Traquina")'s Motion to Dismiss Strike pursuant to Federal Rules 12(b)(6) (Docket 19). The Court finds this matter appropriate for without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. The Court has considered the opposing, and replying papers, and hereby GRANTS Traquina's Motion.
Bruce McGill ("Plaintiff") is a 44 year-old inmate of the California State Prison at Solano Solano"). Complaint ¶¶ 4, 7. Plaintiff alleges that, in 2006, he was diagnosed with glaucoma incarcerated at CSP Solano. Id. ¶ 7. As a result of this diagnosis, Plaintiff claims that his have written prescriptions for various medications including Cosopt, Inderal LA, and Id. ¶ 8.
Alvaroc Traquina ("Defendant") is the Chief Medical Officer and Health Care Manager Solano. Id. ¶ 5. By virtue of this position, Plaintiff avers that Defendant is an employee of the California. Id.
A. Factual Background for Plaintiff's Eighth Amendment Claim
Beginning around April 2008, Defendant allegedly ceased distributing or inconsistently Plaintiff's daily glaucoma medications. Id. ¶ 9. On April 29, 2008, Plaintiff asserts that he emergency appeal--referred to as a "602 appeal"--because he had not received his glaucoma for 30 days. Id. ¶ 10. In this 602 appeal, Plaintiff describes the failed efforts of three nurses who tried to get the prescriptions filled. Id. Plaintiff alleges that, on May 5, 2008, his appeal was granted. Id. ¶ 11. Despite this action, Plaintiff claims that he still did not receive all of glaucoma medication. Id. Counsel for Plaintiff followed up with the warden of CSP Solano on 2008, yet no further action was taken. Id. ¶ 12.
On May 21, 2008, Plaintiff states that he submitted his second-level 602 appeal. Id. ¶ 13. on July 3, 2008, Plaintiff's appeal was granted and Defendant allegedly stated he would reall of Plaintiff's medications. Id. Plaintiff, however, avers that he did not receive these on July 3, 2008, although he did receive them at some later date. Id. ¶ 14. Additionally, argues that after issuing the second-level appeal response, Defendant canceled all of Plaintiff's doctor's appointments including, but not limited to, those scheduled for treating eye pain, loss and headaches. Id. ¶ 17. In a final attempt to procure his medications, Plaintiff ...