The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendant's motion to dismiss for plaintiff's failure to state a claim, filed on April 3, 2012, to which plaintiff filed his opposition on April 23, 2012, after which defendant filed a reply on April 24, 2012; (2) plaintiff's June 22, 2012, motion for the court to appoint an expert medical witness; and (3) plaintiff's June 22, 2012, motion to appoint counsel. Defendant contends that plaintiff has failed to allege facts sufficient to state a claim upon which relief may be granted. Defendant Gonzales also asserts entitlement to qualified immunity for plaintiff's deliberate indifference claim. See Motion to Dismiss (Doc. No. 27). ////
Standard for a Motion to Dismiss for Failure to State a Claim A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the allegations to support relief. In order to survive dismissal, 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 (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, 556 U.S. 662 (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.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 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.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, 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 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. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and 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). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is 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).
Allegations of the Complaint
The gravamen of plaintiff's complaint is that defendant Kathryn Gonzales, a licensed vocational nurse and grievance coordinator at Sacramento County Main Jail, was deliberately indifferent to plaintiff's pain from a knee injury. Plaintiff alleges that he injured his knee playing basketball in September of 2010. The knee was x-rayed, and a nurse ordered Tylenol and a two-week no-exercise regimen. Approximately three weeks later, on October 18, 2010, plaintiff returned to sick call and reported that his knee was frequently and painfully dislocating. His request for an Ace bandage was denied, and he was offered more Tylenol.
Plaintiff filed a grievance on October 23, 2010, seeking a knee brace and consultation with a doctor. Defendant Gonzalez denied the grievance on November 11, 2010. This denial was based on defendant Gonzales' review of plaintiff's medical file and not on an examination of plaintiff's knee. Defendant Gonzalez's reply to the grievance, which is attached to the complaint, stated:
The documentation in your medical file indicates you were educated about gentle exercise that would not cause the pain and problems you are experiencing with your knee and a knee brace was not medically indicated at this visit. This review indicates your assessed medical needs are being met appropriately.
Gonzalez's response also advised plaintiff to sign up for sick call for any further medical complaints, and to notify custodial staff of any "emergent medical condition." Doc. No. 1 at 7.
Plaintiff appealed Gonzalez' response on November 16, 2010.*fn1
In this appeal, he reported that his knee was "pop[ing] out"
several times a day and causing him great pain. He repeated his
request for a knee brace and to see a doctor. The complaint alleges
that plaintiff never received a response to this appeal. However, a
response dated January 27, 2011, is attached to the complaint. Doc.
No. 1 at 10. Like the first response, it was written by defendant
Gonzalez and approved by the facility commander. Gonzalez again stated
that plaintiff's medical needs had been appropriately met, and noted
that he had not initiated another sick call since October 19, 2010.
Plaintiff was encouraged to request a medical visit if he needed
further evaluation of his knee. Id.
The complaint, signed on January 14, 2011 and filed on June 13, 2011, alleges that both the unnamed sick call nurse and defendant Gonzalez ignored plaintiff's reports of debilitating pain and frequent knee dislocations. Plaintiff alleged that he had never seen a doctor and was experiencing pain "to this day." The complaint does not state whether plaintiff sought medical ...