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David Dumas v. Bangi

March 25, 2013

DAVID DUMAS,
PLAINTIFFS,
v.
BANGI, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND (Doc. 12)

Plaintiff David Dumas ("Plaintiff") is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983 and in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff joins the following as defendants to this matter: 1) E. Bangi, 2) Jack St. Clair, 3) Thomatos, and 4) Forster (collectively "Defendants"). (Doc. 1). Presently before this Court is Defendants' combined motion to dismiss Plaintiff's complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 12).

Defendants assert that Plaintiff's claims against them fail because Plaintiff alleges facts that are insufficient to establish an Eighth Amendment claim for deliberate indifference to a serious medical need. (Doc. 12). In reply, Plaintiff essentially restates the allegations of his complaint and maintains that he adequately states a claim against Defendants. (Doc. 13).

Having read and considered the pleadings, and for the reasons set forth below, the Court GRANTS Defendant's motion to dismiss as to Defendants Forster, Thomatos, and St. Clair, and the Court DENIES Defendants' motion to dismissas to Defendant Bangi.

I. BACKGROUND

At all times relevant to his complaint, Plaintiff was a state prisoner confined in the Sierra Conservation Center ("SCC") located in Jamestown, California. (Doc. 1 at ¶ 4.) Plaintiff indicates that 4 he suffers from chronic back pain that interferes with, among other things, his ability to sleep. Id. at ¶9. All named Defendants were yard physicians at Facility C. Id. at ¶¶ 5-8. 6

It appears that Defendant Bangi is Plaintiff's primary care physician. Id. at ¶ 21. While no date 7 is provided, Plaintiff described his chronic back pain to Defendant Bangi during his first meeting with 8 Defendant Bangi. Id. at ¶ 10. Defendant Bangi prescribed aspirin for Plaintiff. Id. On subsequent 9 visits with Defendant Bangi, Defendant Bangi terminated the consultation whenever Plaintiff would mention his back pain. Id. at ¶ 13. Dr. Bangi has not referred Plaintiff to a specialist nor provided Plaintiff with any further pain medication. Id. at ¶ 15.

On April 12, 2011, Defendant Forster met with Plaintiff. Id. at ¶ 17. This was the only time Defendant Forster met with Plaintiff. See generally, (Doc. 1).During this meeting, Plaintiff informed Defendant Forster that Plaintiff had been in constant pain since 2004. Id. at ¶ 17. Plaintiff explained to Defendant Forster that methadone is the only drug that provided relief for Plaintiff, but he would be willing to try another drug of similar "nature and strength." Id. at ¶¶ 17-18. Defendant Forster stated that he would not prescribe Plaintiff any medication because he was not Plaintiff's primary care physician and that he would not act against Defendant Bangi's directive. Id. at ¶ 21. Defendant Forster did, however, recommended a possible psychiatry evaluation. Id. at ¶ 22.

Defendant Thomatos examined Plaintiff on May 11, 2011, at which time Plaintiff sought qualification for a lower bunk and tier accommodation. Id. at ¶ 24. This was the only time Defendant Thomatos met with Plaintiff. See generally, (Doc. 1). Defendant Thomatos indicated that she only had record of Plaintiff's 2004 surgery in Plaintiff's medical file. Id. at ¶¶ 24-25. Defendant Thomatos found that Plaintiff did not meet the criteria to receive the requested accommodation. Id. at ¶ 27.

On May 26, 2011, Defendant St. Clair, as the chief medical officer, reviewed Plaintiff's medical file, but did not personally examine Plaintiff. Id. at ¶ 29. Defendant St. Clair stated that Plaintiff had an unrealistic expectation of a "complete absence of pain" and that Plaintiff did not need a narcotic. Id. at ¶ 30. According to Plaintiff, a proper dose of morphine or methadone should 2 alleviate thirty to forty percent of his pain. Id. at ¶ 32. 3

In the present motion, Defendants, in essence, challenge that the complaint fails to allege sufficient facts to state a claim against them. (Doc. 12). 5

II. LEGAL STANDARDS

A.Federal Rules Of Civil Procedure Rule 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6); see also Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). A 9 complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts ...


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