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Julio Maldonado v. Rodriguez

December 7, 2011



Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion to dismiss brought on behalf of defendant Gandy. Plaintiff has filed an opposition to the motion as well as an addendum to that opposition. Counsel for defendant has not filed a reply.


Plaintiff is proceeding on an amended complaint against defendant Nurses Gandy, Green, and Rodriguez.*fn1 Therein, he alleges that his doctors prescribed him with heart medication after he underwent heart surgery in December 2007. According to plaintiff, in August 2008, the defendant nurses refused to provide him with his medication and falsified his medical records to indicate that they had given him the prescribed medication when in fact, they had not. Plaintiff alleges that he ultimately was required to undergo a second heart surgery as a result of the defendant nurses' refusal to provide him with proper medical care. In terms of relief, plaintiff requests a declaratory judgment and monetary damages. (Am. Compl. (Doc. No. 8) at 1-10 & Ex. H.)


I. Defendant Nurse Gandy's Motion

Pursuant to Rule 12(b)(6), defense counsel moves to dismiss plaintiff's claims on the grounds that he failed to allege that defendant Nurse Gandy participated in any violation of his constitutional rights. Specifically, counsel contends that plaintiff has not alleged that defendant Nurse Gandy disregarded an excessive risk to plaintiff's health or safety or that he suffered a serious injury as a result of defendant Nurse Gandy's conduct. (Def.'s Mot. to Dismiss (Doc. No. 20) at 1, 3-4.)

Pursuant to unenumerated Rule 12(b), defense counsel also moves to dismiss plaintiff's claims on the grounds that he failed to exhaust his administrative remedies. Specifically, counsel contends that plaintiff's primary complaint as expressed in his inmate appeal was that Nurse Rodriguez failed to provide him with blood pressure medication and falsified records to show that she had given him medication when she had not. Counsel contends that in his prison grievance plaintiff did not complain about defendant Nurse Gandy's alleged conduct or her failure to properly supervise Nurse Rodriguez. In this regard, counsel asserts that plaintiff failed to put prison officials on notice of the allegations against defendant Nurse Gandy which he has included in his amended complaint and therefore plaintiff has not satisfied the exhaustion requirement. (Def.'s Mot. to Dismiss at 1, 4-8 & Ex. A & Attachs. 1-5.)

II. Plaintiff's Opposition

In opposition to defendant Nurse Gandy's motion to dismiss, plaintiff argues that he alleges in his amended complaint that defendant Nurse Gandy knew that he was not receiving his medication and tried to cover up the denial and delay of his medical care. In addition, plaintiff contends that he alleges that defendant Nurse Gandy, as a supervisor, had knowledge of and acquiesced to unconstitutional conduct by her subordinates in connection with his medical care. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1-4.) Plaintiff also argues that he has exhausted his administrative remedies, contending that he submitted numerous appeals regarding his alleged inadequate medical care and pursued them through the director's level of review. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 5-7 & Exs. A-F.)


I. Motion Pursuant to Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In determining whether a pleading states a claim, the court accepts as true all material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In the context of a motion to dismiss, the court also resolves doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment prohibited by the United States Constitution. Whitley v. Albers, 475 U.S. 312, 319 (1986). See also Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Neither accident nor negligence constitutes cruel and unusual punishment, as "[i]t is obduracy and wantonness, not inadvertence or ...

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