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Martin Salcido v. D.K. Sisto

February 3, 2012

MARTIN SALCIDO, PLAINTIFF,
v.
D.K. SISTO, WARDEN, ET AL.,*FN1
DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On July 19, 2011, defendant Rice filed a motion to dismiss on the grounds that plaintiff's complaint fails to state a cognizable claim under the Eighth Amendment. After receiving two extensions of time, plaintiff failed to file an opposition, and on November 15, 2011, findings and recommendations issued recommending that plaintiff's claims against defendant Rice be dismissed without prejudice. Plaintiff did not file timely objections or otherwise respond to the findings and recommendations.

On November 21, 2011, defendant Conrad filed a motion to dismiss. On December 21, 2011, plaintiff was granted an additional twenty-one days in which to file an opposition to defendant Conrad's motion to dismiss. On December 22, 2011, plaintiff filed an untimely opposition to defendant Rice's motion to dismiss. Two months have passed since the filing of defendant Conrad's motion to dismiss, and plaintiff has not filed an opposition to defendant Conrad's motion to dismiss.

Although plaintiff is proceeding without counsel, it is incumbent upon him to diligently prosecute this action. Plaintiff is cautioned that failure to follow future court orders may result in the dismissal of this action. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992) (the court has the power to control its docket and the cases pending before it). In an abundance of caution, the court will vacate the November 15, 2011 findings and recommendations, and rule on the merits of defendant Rice's motion to dismiss. Because plaintiff has failed to timely oppose defendant Conrad's motion, the court will also rule on defendant Conrad's motion absent plaintiff's opposition.

For the reasons set forth below, the undersigned recommends that defendant Rice's motion to dismiss be granted, and grants defendant Conrad's motion to dismiss with leave for plaintiff to file an amended complaint as to defendant Conrad.

II. Plaintiff's Complaint

In his verified complaint, plaintiff alleges that on July 30, 2008, during an education class, he began to experience severe chest pains. He informed his "supervisor," defendant Rice,*fn2 that plaintiff was under chronic cardiac care, had not received his "regular" medication for five days, and was suffering from extreme chest pains. Plaintiff asked for a pass to the medical clinic. Defendant Rice allegedly told plaintiff that Rice would not write one, but that "if it was that much of an emergency, C/O Conrad would have to grant permission and issue the pass." (Dkt. No. 1 at 3.)

Plaintiff alleges that he told defendant Conrad the same complaints. Plaintiff alleges defendant Conrad "acknowledged [plaintiff's] ongoing medical condition," but stated "if [plaintiff] had not . . . received [his] heart meds for five days, that was an issue [plaintiff] should take up with [his] housing unit officers and medical staff." (Dkt. No. 1 at 4.) Defendant Conrad did not provide plaintiff a pass to the clinic. At some point after Conrad denied the pass, plaintiff walked out toward the clinic, but went man down with a heart attack en route to the clinic. (Dkt. No. 1 at 4.) Plaintiff claims he was provided three doses of nitroglycerin, an EKG, x-rays, a pain shot, and had blood drawn, and has not yet completely recovered.

Plaintiff refers the court to an "emergency medical response report," (dkt. no. 1 at 4), but no such report was provided. (Dkt. No. 1, passim.) Plaintiff provides a "Health Care Services Physician Request for Services" form, dated July 31, 2008. (Dkt. No. 1 at 5.) Dr. Rohrer ordered a "Cardiology - EST" test, but marked the form "routine," not emergent or urgent. (Id.) Plaintiff provides copies of his administrative appeals.

Plaintiff also provides declarations from five other inmates stating that they witnessed plaintiff tell defendant Rice that plaintiff was having chest pains, and witnessed Rice deny plaintiff's request for a pass to the clinic. (Dkt. No. 1 at 20-24.) Each declares they "observed" plaintiff as he "stood in the doorway and requested a pass to the clinic due to his chest pains, only to be denied by" defendant Conrad. (Id.)

Plaintiff alleges defendants Rice and Conrad were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment.

III. Legal Standards - Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 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).

IV. Eighth Amendment Standards for Deliberate Indifference to Medical Needs In order to state a claim for relief under the Eighth Amendment for inadequate prison medical care, plaintiff must allege "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A medical need is serious if "the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Deliberate indifference is proved by evidence that a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference ...


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