FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Defendants Reynolds, Mallet, Clarke, and Walker move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.*fn1 For the reasons explained below, the undersigned recommends that the motion be denied in part and granted in part.
This action proceeds on the amended complaint filed on January 24, 2011. Dckt. No. 21.
In the amended complaint, plaintiff asserts the following allegations relevant to the instant motion:
Plaintiff, a prisoner incarcerated at High Desert State Prison ("HDSP"), received surgery to repair a hernia at Northern Nevada Medical Center on February 18, 2009. Id. at 2-3, 4. Plaintiff's surgeon prescribed him "Vicodin, 325 mg., every (4) hours" for his post-surgical pain, and plaintiff was returned to HDSP. Id. at 4-5, 9. Defendant Mallet, a physician's assistant at HDSP, changed the Vicodin prescription, however, "immediately after [the] surgery." Id. at 9,
10. Later in the day, plaintiff began experiencing extreme pain and told correctional officers that he needed medical attention. Id. at 5. One of the correctional officers told plaintiff that defendant Reynolds, a licensed vocational nurse ("LVN") at HDSP, had been notified and had instructed plaintiff to lay down and relax. Id. at 6. At 8 p.m. that evening, plaintiff again complained of extreme pain, but defendant Reynolds refused to provide him with the Vicodin prescribed by the surgeon. Id. Instead, defendant Reynolds gave plaintiff a "Tylenol #3 Aspirin/Codeine pill, which did not alleviate the pain at all." Id.
At 10:00 p.m., plaintiff, in extreme pain, called "man down" to obtain further treatment. Id. Defendant Reynolds responded, but refused to provide plaintiff with the Vicodin or any other pain treatment. Id. At 2:00 a.m. (now on February 19, 2009), plaintiff was experiencing extreme and unbearable pain and was taken to the Correctional Treatment Center ("CTC"). Id. At 3:30 a.m., a nurse at the CTC gave plaintiff a morphine injection that alleviated his pain for eight hours. Id. at 6-7.
At 12:00 p.m., plaintiff again was experiencing extreme pain and notified defendant Clarke, another LVN at HDSP. Id. at 7. Defendant Clarke denied plaintiff Vicodin and left him "to suffer in extreme pain." A short time later, plaintiff's cellmate called "man down" to obtain a response from medical staff to plaintiff's extreme pain. Id. Defendants Reynolds and Clarke responded, telling defendant Brown (who is not a party to this motion) that plaintiff was faking his pain in order to "get high." Id.
Plaintiff alleges that defendant Walker failed to adequately train defendants Reynolds and Clarke and " den[ied] that a problem existed when raised by plaintiff." Id. at 12.
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 ...