The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED ECF No. 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Plaintiff Raul Vargas ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On February 29, 2012, the Court found that Plaintiff stated cognizable claims against Defendants Chief Medical Officer Anthony S. Lonigro, Physician R. Taherpour, Physician's Assistant Randolph Wilson III, and Nurse Practitioner A. Manasrah for deliberate indifference to a serious medical need in violation of the Eighth Amendment.
Pending before the Court is Defendants Lonigro, Taherpour, and Wilson's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.*fn1 ECF No. 14. On May 31, 2012, Plaintiff filed his opposition. ECF No. 15. On June 4, 2012, Defendants filed their reply. ECF No. 16. The matter is submitted pursuant to Local Rule 230(l). 2
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for 5 failure to state a claim, the court must accept as true the allegations of the complaint in question, 6 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the 7 light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. 8
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice pleading. 9
Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).
Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
III. Summary of Complaint
Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California during the events alleged in this action. Plaintiff named as Defendants: Anthony S. Lonigro, the chief medical executive officer at PVSP; R. Taherpour, a medical doctor at PVSP; Randolph Wilson III, a physician assistant at PVSP; and A. Manasrah, a nurse practitioner at PVSP.
Plaintiff alleges the following. Plaintiff suffers from chronic back and knee pain as a result of a childhood accident from being struck by a car. Compl. ¶ 9. CDCR staff has always issued Plaintiff a lower bunk, lower tier cell. Compl. ¶ 10. Plaintiff also suffers from Hepatitis C since 1979. Compl. ¶ 11. CDCR health policy instructed Plaintiff to avoid all non-steroidal anti-inflammatory drugs ("NSAIDs"), such as Tylenol, Motrin, and Naproxen. Compl. ¶ 11.
Plaintiff arrived at PVSP in June of 2009. Compl. ¶ 12. Plaintiff complained to numerous staff regarding his chronic pain. Compl. ¶ 12. Defendant Manasrah prescribed Tylenol. Compl. ¶ 12. After taking Tylenol for a few months, Plaintiff complained of having abdominal pain to 2 medical staff. Compl. ¶ 13. Defendant Manasrah told Plaintiff that it was probably indigestion and 3 prescribed medication for that issue. Compl. ¶ 13. Defendant Manasrah is aware of CDCR policy 4 that Hepatitis C inmates avoid all NSAIDs such as Tylenol. Compl. ¶ 14. 5
Plaintiff was then seen by physician assistant Das, who informed Plaintiff that the Tylenol 6 was probably damaging his liver. Compl. ¶ 15. Das discontinued the Tylenol ...