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, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) defendant Miranda's motion to dismiss (ECF No. 29); (2) the motion to dismiss brought by defendants Clark, Davey, Gower, McDonald, Sanders and Van Leer (ECF No. 30), in which defendant Miranda joins (ECF No. 36); and (3) plaintiff's request for leave to amend (ECF No. 41). Plaintiff opposes the motions to dismiss (ECF No. 41), and defendants have replied to his opposition (ECF No. 46).
This action proceeds on the original complaint (ECF No. 1). Six defendants have previously been dismissed. See Orders filed December 9, 2011 (ECF No. 17) and March 21, 2012 (ECF No. 31). The seven remaining defendants, movants here, are correctional officers and prison officials at High Desert State Prison (HDSP). Plaintiff alleges that the defendants violated his constitutional rights in relation to his segregation from the inmate general population and housing in a Special Purpose Segregation Unit (SPSU) from October 6, 2009 through May 26, 2010. Plaintiff claims that he and others were placed in segregation without notice and a hearing, in violation of due process, during an investigation into inmate gang activity. (The record before the court reflects the position of prison authorities that plaintiff was not placed "in segregation," but that his housing unit, Facility B, was placed on "modified program" or "lockdown" in response to violence or the threat of violence among inmates.) Plaintiff claims further that his Eighth Amendment rights were violated during his period of segregation in several ways: (1) by inhumane conditions of confinement including extremely cold temperatures and inadequate clothing, (2) by deprivation of privileges afforded to inmates in general population and to those housed in the Administrative Segregation Unit (ASU) and Security Housing Unit (SHU); (3) by complete deprivation of outdoor exercise; and (4) by inadequate medical care. Plaintiff also claims that his First Amended rights were violated in two ways: (1) by the denial of access to religious activity; and (2) by interference with his access to the courts. See ECF No. 1.
Defendant Miranda's Motion to Dismiss For Failure To State A Claim
Plaintiff claims that defendant Miranda failed to provide medical care for his severe abdominal pain, thereby prolonging plaintiff's pain and suffering. Defendant Miranda contends that the facts alleged in the complaint do not support an Eighth Amendment claim against him. See ECF Nos. 29, 29-1. Miranda seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6), without leave to amend. Id. Plaintiff seeks leave to amend.
Standards Governing the Motion
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In order to survive dismissal for failure to state a claim, 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 v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Allegations of the Complaint
According to the complaint, defendant Miranda was at all relevant times a physician's assistant (PA) at HDSP. His duties "included providing medical attention to inmates, conducting sick calls, screening medical problems, evaluating requests for appointments with other medical staff, and personally visiting each specialized housing unit at least once weekly," pursuant to 15 Cal. Code Regs. § 3354(e) & (f)(1). ECF No. 1, p. 4.
On February 22, 2010, plaintiff submitted a Health Care Service Request Form (CDCR Form 7362) "complaining of excruciating abdominal pain, possible abdominal flu and/or food poisoning resulting in dia[r]rhea." ECF No. 1, p. 18. He was informed that he would be seen by medical staff on March 18, 2010, "which proved to be false." Id. Due to increasing pain from stomach cramps and continuing diarrhea, plaintiff submitted another Form 7362 health care request on March 23, 2010. He requested reinstatement of previously ordered medication for Irritable Bowel Syndrome (IBS). Plaintiff was informed that he would be seen by medical staff on March 26, 2010; once again, the visit did not occur. Id. On April 1, 2010 and again on April 10, 2010, plaintiff submitted inmate requests for interviews to the Facility B clinic. These requests indicated that his condition was "severe" and getting worse, and he asked "to be examined by a physician/specialist A.S.A.P." Id. There was no response. Plaintiff then submitted a third Form 7362 request on April 20, 2010, seeking prompt access to medical attention and "unequivocally conveying his continued bouts of chronic persisting and severe stomach pains, cramps" and diarrhea. Plaintiff was finally examined by defendant Clark, a registered nurse, on April 28, 2010. Id. at 18-19. On April 30, 2010, plaintiff received prescription fiber tablets which he took for two days. Plaintiff's IBS symptons worsened after he took the fiber tablets. Id. at 19.
With regard to these incidents, plaintiff alleges in general terms that "defendants Miranda and Clark were responsible for the timely provision of plaintiff's medical care and for ensuring that as an inmate under their care, he was made readily available to adequate, timely and efficient medical care." Id. at 19. Plaintiff also claims that "these defendants" were aware of his "wanton suffering" but despite their "constitutional obligations" to treat his "preventable sufferings and pain . . . sat by idly refusing to come to his aid and for some eleven weeks during which he suffered unbearable, excruciating and at times paralyzing pains before responding adequately." Id. He also references "[c]ertain unidentified Does" who shared a duty to treat his "preventable suffering." Id.
Legal Principles Governing Claims of Inadequate Medical Care There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand).
A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th ...