The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §1983. Pending before the court are: (1) plaintiff's conflict-of-interest "objection" to the representation of defendant Dullas by the Attorney General's Office (ECF No. 18); (2) defendant Dullas' motion to dismiss (ECF No. 19), to which plaintiff filed his opposition (ECF No. 21), after which defendant Dullas filed a reply (ECF No. 24)*fn1 ; (3) plaintiff's motion for a protective order (ECF No. 20).
Allegations of the Complaint
Plaintiff claims that defendant N. Dullas, a Senior Registered Nurse at the California Medical Facility (CMF), violated his rights under the Eighth Amendment and the Fourteenth Amendment's equal protection clause when plaintiff was threatened with physical force to make him comply with medical treatment over his objections. Complaint (ECF No. 1), pp. 3-4. Plaintiff alleges that on May 19, 2009, Dullas ordered security staff to place plaintiff on a gurney and take him to the emergency room to be examined by a doctor despite plaintiff's refusal of further treatment. Id. at 5. The non-party security staff, in response to defendant Dullas' order, verbally threatened plaintiff with physical force if he did not voluntarily get on the gurney. Id. Fearing for his safety, plaintiff did get on the gurney to allow the health care treatment defendant Dullas had ordered. Id. Plaintiff alleges that defendant Dullas subjected him to both cruel and unusual punishment and to a violation of his equal protection rights. Id.
The exhibits attached to the complaint indicate that the incident was triggered when plaintiff's blood pressure spiked during a dialysis treatment in the prison clinic. See ECF No. 1, p. 22 (amended second level response to plaintiff's administrative appeal, dated 11/20/10). Nurse Dullas wanted to administer medication and continue dialysis, but plaintiff insisted on discontinuing dialysis. Nurse Dullas "activated" a "medical emergency," and plaintiff was transported to the emergency room where he spoke with doctors and refused treatment. Id. In his grievance, plaintiff stated that he "felt disrespected and violated by the verbal use of force" employed at the prison to get him on the gurney for transport to the hospital. Id.
A review of plaintiff's exhibits indicates that plaintiff's initial administrative appeal was lost, but was later found and eventually addressed through the third director's level. See Complaint Exhibits, pp. 7-22.
Objection to "Conflict of Interest"
Plaintiff contends that the California Attorney General's Office may not represent defendants in civil rights lawsuits, because such representation is contrary to the Justice Department's duty to uphold the law. The objection is entirely without factual or legal basis and is summarily overruled.
Defendant Dullas moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that plaintiff has failed to state a claim against her for which relief may be granted. Motion to Dismiss (MTD), p. 1. In addition, defendant Dullas contends she is entitled to qualified immunity. Id.
Legal Standard for Motion to Dismiss.
In order 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 Atlantic 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, 556 U.S. 662, 678 (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 ...