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Donald Gilbert v. B. Wolfley

November 29, 2011

DONALD GILBERT,
PLAINTIFF,
v.
B. WOLFLEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED (DOC. 37) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS

Findings And Recommendations

I. Background

Plaintiff Donald Gilbert ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint against Defendants Erhman, Vilaysane, Phi, and Diep for deliberate indifference to a serious medical need in violation of the Eighth Amendment.*fn1 On July 22, 2011, Defendants Vilaysane and Ehrman filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defs.' Mot. Dismiss, Doc. 37. On November 14, 2011, Plaintiff filed his opposition. Pl.'s Opp'n, Doc. 44. On November 21, 2011, Defendants filed their reply. Defs.' Reply, Doc. 45. The matter is submitted pursuant to Local Rule 230(l).

II. Summary Of First Amended Complaint

Plaintiff alleges that on February 11, 2008, at approximately 4:45 PM, Plaintiff worked in the facility C satellite kitchen, loading and unloading food and materials from the food services dock at the back dock of the kitchen. Pl.'s Am. Compl. 3, ¶ 1. Wolfley was talking to D. Anderson and not paying attention to what he was doing. Id. Wolfley jerked the door up, which hit the lock bar, causing the bar to swing forward and cut off the end of Plaintiff's finger. Id. There was no safety lock mechanism on the truck door to prevent the door from being accidentally closed. Id.

After Plaintiff's finger was severed, it took until 8:50 PM to transport Plaintiff to the Fresno hospital. Id. Plaintiff's finger was not placed in an ice cooler, as PVSP's medical staff negligently put the finger in the hot trunk of the transporting car. Id. Plaintiff's right index finger could not be reattached. Id.

The doctor at Fresno hospital prescribed vicodin for the severe pain Plaintiff suffered. Id. ¶ 23. However, medical staff at PVSP refused to issue Plaintiff the prescribed vicodin. Id. Plaintiff was in severe pain for several days and was given no adequate pain medication to control the level of pain. (Pl.'s Am. Compl. 10, ¶ 23.) Plaintiff alleges that he was seen by defendants Vilaysane, B. Phi, J. Diep, and H. Ehrman in their capacity as doctors. Id. ¶¶ 30-33.

III. Failure To State A Claim

A. Legal Standard

"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). In considering a motion to dismiss for failure to state a claim, 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 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a). 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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

B. Analysis

Defendants contend that Plaintiff fails to state a claim, as his allegations do not link Defendants with any specificity to an act or omission that violated Plaintiff's rights. Defs.' Mem. P. & A. 8-9. Plaintiff argues that his allegations in the amended complaint state a claim, without more. Pl.'s Opp'n. The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged ...


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