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Ken Burke v. A. Enenoh

June 19, 2012

KEN BURKE,
PLAINTIFF,
v.
A. ENENOH, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTIONS TO DISMISS BE GRANTED IN PART AND DENIED IN PART (Docs. 15 and 22) THIRTY-DAY OBJECTION PERIOD

Findings and Recommendations Addressing Motions to Dismiss

I. Procedural History

Plaintiff Ken Burke, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 1, 2010. This action for damages is proceeding on Plaintiff's verified complaint against Defendants Juarez and Enenmoh for violation of the Eighth Amendment arising out of the disruption in the delivery of Plaintiff's prescribed Lamotrigine doses.*fn1 28 U.S.C. § 1915A. (Docs. 8 and 10.)

On December 27, 2011, Defendant Juarez filed a motion to dismiss for failure to exhaust the available administrative remedies and for failure to state a claim. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on January 20, 2012, and Defendant Juarez filed a reply on January 26, 2012.*fn2

On April 25, 2012, Defendant Enenmoh filed a substantially similar motion to dismiss for failure to exhaust and for failure to state a claim. Plaintiff filed an opposition on May 7, 2012, and Defendant Enenmoh filed a reply on May 11, 2012. The motions have been submitted upon the record pursuant to Local Rule 230(l). For the reasons set forth below, the Court recommends that the motions be granted as to the dismissal of Plaintiff's claim for mental and emotional injury and denied on all other grounds.

II. Motions to Dismiss for Failure to State a Claim

A. Legal Standard

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)) (quotation marks omitted); Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996-97 (9th Cir. 2006); Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further, although the pleading standard is now higher, the Ninth Circuit has continued to emphasize that prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, __ F.3d __, __, No. 11-16335, 2012 WL 1889786, at *5 (9th Cir. May 25, 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted).

B. Plaintiff's Eighth Amendment Medical Care Claim

1. Introduction

Plaintiff is proceeding on an Eighth Amendment medical care claim, which requires that he show deliberate indifference to his serious medical needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)) (quotation marks omitted). The two-part test for deliberate indifference requires Plaintiff to show (1) a serious medical need by demonstrating that failure to treat his condition could result in further significant injury or the unnecessary and wanton infliction of pain, and (2) the defendant's response to the need was deliberately indifferent. Jett, 439 F.3d at 1096 (quotation marks and citation omitted).

Defendants argue that they are entitled to dismissal of Plaintiff's claim because Plaintiff fails to allege a causal connection between them and the injury complained of, Plaintiff fails to allege they acted with deliberate indifference, and Plaintiff fails to allege a physical injury to support a compensatory damages claim for mental and emotional injury.

The Court previously screened Plaintiff's complaint and, in a thorough, detailed order, explained the basis for its findings that Plaintiff stated a claim against Defendants Juarez and Enenmoh. 28 U.S.C. § 1915A; Docs. 8, 10. The screening standard is the same standard which governs Rule 12(b)(6) motions, Watison, 668 F.3d at 1112, and therefore, in cases which have been screened, the Court generally views motions to dismiss for failure to state a claim with disfavor. Unless a motion sets forth new or different grounds not previously considered by the Court, it is disinclined to "'rethink what it has already thought.'" Sequoia Forestkeeper v. U.S. Forest Service, No. CV F 09-392 LJO JLT, 2011 WL 902120, at *6 (E.D.Cal. Mar. 15, 2011) (quoting United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998)). For the reasons which follow, the Court is not persuaded to depart from its prior screening order.

2. Discussion

Plaintiff's claim arises from the alleged ongoing disruption in the delivery of his prescription medication Lamotrigine and in its ...


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