ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently before the court is defendants' motion to dismiss for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). For the reasons explained below, the undersigned recommends that the motion be denied.
This action proceeds on the complaint filed on July 19, 2010. Dckt. No. 1. In the complaint, plaintiff alleges that defendants violated his civil rights under the Eighth Amendment to the United States Constitution.
Plaintiff, a prisoner incarcerated at California State Prison, Sacramento, experiences pain in his ankle and foot stemming from a gun shot wound to his ankle and the foot condition plantar fasciitis. Id. at 5, 7.*fn1 In 2006, plaintiff was issued a medical Comprehensive Accommodation Chrono (chrono) by a non-party physician allowing plaintiff to use insoles. Id. at 5, 35. In October 2007, defendant McAlpine, a physician, issued a chrono permitting plaintiff to wear his own shoes. Id. at 6, 36. Plaintiff claims this chrono, which was valid for one year, was issued because defendant McAlpine was aware that plaintiff's foot pain could become chronic if left untreated. Id. at 6. On March 5, 2008, defendant McAlpine issued another chrono allowing plaintiff to wear his own shoes. Id. at 6, 35-36.
On January 27, 2008, plaintiff had a contact visit scheduled. Id. at 7. Defendant Hall, the sergeant assigned to visiting, was presented with two of plaintiff's chronos, one of which granted plaintiff permission to use his own tennis shoes. Id. Defendant Hall, believing that plaintiff's chronos were falsified documents, issued plaintiff a "115" rules violation. Id. The chronos, however, were valid and plaintiff was found not guilty of the rules violation. Id. On February 23, 2008, subsequent to the not guilty determination, prison staff acting under the direction of defendant Hall prohibited plaintiff from wearing his personal tennis shoes during a contact visit. Id. at 8. Plaintiff was required to wear state-issued soft-shoes, and prison staff stated "personal policy" as the reason plaintiff was not permitted to wear his personal shoes. Id.
From February 2008 until January 2010, at which time all prison contact visits were suspended, plaintiff was required to wear state-issued soft-shoes for all weekend contact visits. Id. These visits typically lasted eight hours, and the wearing of state-issued shoes for this duration resulted in multiple days of swelling and pain in plaintiff's feet. Id. Plaintiff appealed the decision to not allow him to wear his own shoes during weekend visits, which was denied because defendant McAlpine allegedly told defendant Hall that plaintiff's chronos did not prohibit plaintiff from wearing state-issued shoes. Id. at 8-9.
In September 2009, plaintiff experienced chronic pain and numbness and requested to see a podiatrist. Id. at 9. He was examined by defendant Nangalama, a physician, who concluded plaintiff may have tendinitis. Id. Although it was noted that there was a reduction of pain and swelling when he wore his own shoes, plaintiff's chronos were not renewed and Naproxen was prescribed. Id. at 9, 43-44. Defendant Nangalama denied plaintiff's request to see a podiatrist, observing that plaintiff had already been evaluated by a podiatrist in December 2008 and February 2009. Id. at 43-44.
II. Rule 12(b)(6) Standard
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"; rather, it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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. (internal quotation marks omitted). "[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). "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. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
The court may additionally consider facts established by exhibits attached to the complaint, facts which may be judicially noticed, and matters of public record, including pleadings, orders, and other papers filed with the court. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
Similarly, the court may disregard allegations contradicted by the complaint's attached exhibits and is not required to accept as true allegations contradicted by judicially noticed facts. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he 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." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.
Where a complaint is deficient, a pro se litigant is entitled to notice of the deficiencies and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) ...