The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATION THAT DEFENDANTS' MOTION TO DISMISS BE DENIED (ECF No. 74)
OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Barry S. Jameson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 9, 2011, the Court screened Plaintiff's Fifth Amended Complaint and found that he had stated a claim against Defendants Perry and Rees for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. (ECF No. 62.) The Defendants filed a Motion to Dismiss on August 31, 2011, arguing that Plaintiff failed to state a cognizable claim and that Defendants are entitled to qualified immunity. (ECF No. 74.) Plaintiff filed an opposition on September 16, 2011. (ECF No. 76.) The Defendants filed a reply and a request for judicial notice on October 11, 2011. (ECF Nos. 79 & 80.)
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
The Defendants move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Perry and Rees argue that Plaintiff has not stated a cognizable Eighth Amendment claim because his medical needs were not sufficiently serious and the allegations of deliberate indifference rest solely on a disagreement with the Defendants' medical opinions. Defendants also contend that they are entitled to qualified immunity.
At the outset, Defendants are sure to appreciate that the points they raise here are essentially the same ones this Court necessarily considered in screening Plaintiff's pleading. Re-review of those same pleadings is unlikely to produce a different result. Thus a motion to dismiss at this juncture is unlikely to serve meaningful purpose and may in fact slow the process and postpone review of the provable evidence related to this claim.
Nevertheless, the Court will address Defendants' challenges to, and once again review, those pleadings which, when presumed to be true, it finds sufficient to state a cognizable claim.
A. Failure to State A Claim
The Defendants argue in their motion and reply that the Fifth Amended Complaint does not state a cognizable Eighth Amendment claim. Plaintiff contends that the Defendants' conduct amounted to a failure to treat his serious medical needs.
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
In terms of a serious medical need, Plaintiff has alleged that he suffered broken bones and injuries to his head. The Defendants characterize these injuries and any lack of treatment thereto as the kind of deprivation tolerated by the Eighth Amendment. (ECF No. 74 at 9.) As stated in the March 9, 2011 Screening Order, allegations of broken bones and head injuries are ...