FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This case is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(17). See 28 U.S.C. § 636(b)(1). Defendants Aragon and Padilla ("defendants") move to dismiss plaintiff's first amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons set forth herein, the motion must be denied.
I. Plaintiff's Allegations
This action proceeds on plaintiff's first amended complaint on his
claims that defendants violated his civil rights by acting with
deliberate indifference to his serious medical needs.*fn1
See Dckt. No. 20. Specifically, the amended complaint alleges
On August 31, 2009, plaintiff was housed at the Rio Consumnes Correctional Center ("RCCC"). Id. at 1. While plaintiff was lying injured on his stomach, semi-conscious and bleeding profusely from his head, he heard a deputy approach him. Id. Plaintiff claims he yelled out "my head and neck!" to notify the deputy, later identified as defendant Aragon, of the nature of his injuries. Id. Aragon allegedly jerked plaintiff's arms behind his back and placed plaintiff in handcuffs. Id. Plaintiff then stated "my neck [and] shoulder." Id. Aragon then allegedly grabbed plaintiff by his handcuffs, and jerked plaintiff's arms towards his head. Id. Plaintiff felt something grind and tear in his right shoulder and yelled "ouch, my  shoulder!" Id. at 2. While plaintiff was still on the ground, Aragon allegedly dragged plaintiff by his handcuffs. Id.
Plaintiff was subsequently evaluated by defendant Padilla, a physician working for RCCC, who put nine staples in the rear side of plaintiff's head and six stitches in the left temple area of his head. Id. Plaintiff claims that Padilla also evaluated his shoulder and ordered that he be taken to a hospital for X-rays. Id.
Upon his return to RCCC, plaintiff was supposed to see an orthopedist. Id. However, it was not until nearly two months later, on October 20, 2009, that plaintiff was transferred to the Sacramento County Main Jail to be examined by an orthopedic surgeon, Dr. Neblett. Id. Dr. Neblett allegedly asked plaintiff "why did it take so long for you to be seen?" Id. Dr. Neblett evaluated plaintiff and recommended immediate surgery on his shoulder. Id. at 2-3. ////
The next day, plaintiff was transferred back to RCCC. Id. He was evaluated by Padilla and requested to have a surgical consultation. Id. at 3. In response to plaintiff's request, Padilla allegedly laughed at plaintiff and said that he would not receive medical attention until he was transferred into the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Id. Plaintiff claims that Padilla stated that he was not receiving surgery due to "the budget." Id. Plaintiff claims he is in extreme and debilitating pain and has not been provided adequate pain relievers. Id. at 3-4. Plaintiff also alleges that he was housed in general population with an injury that precludes him from protecting himself, and that he should have been housed in the medical unit until after his surgery. Id. at 4.
II. Rule 12(b)(6) Standards
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"; 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. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[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, 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, Hospital Bldg. Co. v. Rex Hosp. Trs., 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, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). The court need not accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A pro se litigant is, however, entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
III. Constitutional Standards
To state a section 1983 claim for a constitutional violation based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pretrial detainee's claim for unconstitutional conditions of confinement arises from the Fourteenth Amendment Due Process Clause rather than from the Eighth Amendment prohibition against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Nevertheless, the same standards ...