The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT DUTRA'S MOTION TO DISMISS BE DENIED (Doc. 29) TWENTY-DAY OBJECTION DEADLINE
Findings and Recommendations Addressing Defendant's Motion to Dismiss
Plaintiff Arvie B. Carroll, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 9, 2010. This action is proceeding on Plaintiff's amended complaint, filed on April 12, 2011, against Defendants Dutra and Soto for acting with deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment of the United States Constitution.
On July 25, 2011, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Dutra (Defendant) filed a motion to dismiss for failure to state a claim and on the ground of qualified immunity.*fn1 Plaintiff filed an opposition on August 5, 2011, and Defendant filed a reply on August 15, 2011.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, the Court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
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, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further, although the pleading standard is now higher, prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted).
B. Cognizablility of Plaintiff's Eighth Amendment Medical Care Claim
Defendant argues that he is entitled to dismissal of Plaintiff's Eighth Amendment claim against him because Plaintiff alleges no facts showing that he forced Plaintiff to wait outside in the cold or that he refused Plaintiff's request for medical treatment for his eye. Defendant also argues that there is no plausible factual basis for Plaintiff's claim that the exposure to cold weather harmed his eye or that he suffered any harm as a result of his cancelled lab appointment.
The Court has already screened Plaintiff's amended complaint for claim cognizability and in doing so, it issued a thorough, detailed order explaining the bases for its findings. 28 U.S.C. § 1915A; Doc. 23. The screening standard is the same standard which governs Rule 12(b)(6) motions, and in moving to dismiss, Defendant makes no effort to distinguish the grounds for his motion from those set forth in the previously-issued screening order or to otherwise articulate where the Court erred. Indeed, the motion is devoid of any recognition that the amended complaint was screened and a ruling issued on the cognizability of Plaintiff's claim.
The Court takes a dim view of motions to dismiss for failure to state a claim under these circumstances, and given that Defendant's motion fails to set forth any new or different grounds not previously considered by the Court, it declines to "rethink what it has already thought.'" Sequoia Forestkeeper v. U.S. Forest Service, No. CV F 09-392 LJO JLT, 2011 WL 902120, at *6 (E.D.Cal. Mar. 15, 2011) (quoting United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998)).*fn2
Accordingly, the Court recommends that Defendant's motion to dismiss for failure to state a claim ...