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Jose B. Ortiz v. J. Reynolds

June 28, 2012

JOSE B. ORTIZ, PLAINTIFF,
v.
J. REYNOLDS, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Pending before the court is the September 6, 2011 motion to dismiss filed by the sole remaining defendant, R. Miranda. Also pending before the court is defendant's motion to strike plaintiff's sur-reply to the motion to dismiss. For the reasons explained below, the undersigned recommends that both motions be granted.

I. Background

This action proceeds on the amended complaint filed on May 16, 2011. Dckt. No. 21. In the amended complaint, plaintiff asserts that defendant denied him adequate medical care in a variety of ways. Id. at 3-9. Plaintiff alleges, among other things, that defendant is a physician's assistant who is responsible for all inmate medical care at High Desert State Prison ("HDSP") Facility B, where plaintiff is housed. Id. at 2. According to the complaint, defendant has interfered with plaintiff's receipt of necessary pain medication and medical testing. Id. at 3-9. Plaintiff further alleges that defendant has taken various adverse actions with regard to plaintiff's medical care because of plaintiff's complaints about the care he was receiving. Id. at 9. Among other relief, plaintiff seeks "injunctive relief in the form of proper medical diagnostic testing and treatment[.]" Id. at 12. Defendant's motion to dismiss concerns solely plaintiff's injunctive relief claim.

II. Motion to Strike

Plaintiff has filed a surreply to defendant's reply brief. Defendant moves to strike the sur-reply as unauthorized. As a surreply is not contemplated by the Federal Rules of Civil Procedure nor this court's Local Rules. Accordingly, the motion to strike should be granted and the surreply has not considered.

III. Rule 12(b)(6) Standard

In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, U.S. , 127 S.Ct. 1955, 1964, 1969, 1974 (2007) (stating that the 12(b)(6) standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would entitle him to relief "has been questioned, criticized, and explained away long enough," and that having "earned its retirement," it "is best forgotten as an incomplete, negative gloss on an accepted pleading standard"). Thus, the grounds must amount to "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action. Id. at 1965. Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted). Dismissal may be 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).

The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The court may disregard allegations contradicted by the complaint's attached exhibits. 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 Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987)). The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). "[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). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.

Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

IV. Analysis

Defendant advances three arguments in favor of dismissal of plaintiff's request for injunctive relief: (1) that the claim is barred because it is encompassed by the pending class action Plata v. Schwarzenegger, No. C-01-1351 TCH (N.D. Cal. 2001); (2) that defendant lacks authority to provide the relief requested; and (3) that plaintiff cannot demonstrate that he faces an imminent threat of injury from defendant.

Defendant argues that plaintiff's request for injunctive relief "fall[s] directly" within the Plata action.*fn1 Plata is a class action in which the class is comprised of California state prisoners with serious medical needs. Stip. ¶ 1. Plaintiff argues that he is not a member of the Plata class and that his case has nothing to do with Plata. However, plaintiff's allegations that he is an HDSP inmate with serious medical needs place him within the Plata class. Dckt. No. 21 at 2 (plaintiff is and was at all relevant times an inmate at HDSP), 8 (plaintiff has degenerative disc disease, a "serious debilitating medical problem").

Under the Plata Stipulation, the California Department of Corrections and Rehabilitation ("CDC") must implement policies and procedures designed to provide class members with the minimum level of medical care required by the Eighth Amendment. Stip. ΒΆ 4. The Stipulation states, "The parties have reached agreement on procedures that the parties will follow in this case for resolving disputes concerning the constitutional adequacy ...


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