The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT ASHBY'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (ECF No. 53) OBJECTIONS DUE WITHIN TWENTY-ONE DAYS
Plaintiff Bilal Ahdom ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 26, 2009. This action is proceeding on Plaintiff's first amended complaint against Defendants Araich, Chen, Shittu, Ashby, S. Lopez, Spaeth and Schaefer for deliberate indifference to his medical needs in violation of the Eighth Amendment.
On November 8, 2012, Defendant Jonathan Ashby, D.O., ("Defendant Ashby") filed a motion to dismiss the first amended complaint against him for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (ECF No. 53.) Plaintiff filed an opposition on January 2, 2013. (ECF No. 62.) Defendant Ashby replied on January 10, 2013. (ECF No. 63.) The motion is deemed submitted. Local Rule 230(l).
II. Relevant First Amended Complaint Allegations
Plaintiff is currently housed at California State Prison, Corcoran. The events at issue occurred while Plaintiff was housed at Kern Valley State Prison ("KVSP"). Defendant Ashby was a primary care physician at KVSP.
On May 1, 2008, Plaintiff underwent back surgery. Following surgery, Plaintiff experienced back pain. He requested effective pain medication, along with an orthopedic mattress, a lower tier placement, a lower bunk cell and a prone exemption chrono/vest.
On September 10, 2008, Plaintiff was examined by Defendant Ashby and "informed him about his pain; his need for a lower tier cell; effective pain meds; and orthopedic mattress; and a prone exemption chrono/vest. Ashby deliberately failed to act." (ECF No. 38.)
Between May 24 and September 11, 2008, Plaintiff "complained of the . . . problems he suffered to Defendants Lopez, Spaeth, Shittu[,] Ashby, Araich, Chen and Does 1 through 3, and they all knew Plaintiff faced a substantial risk of serious harm, and further injury, and they acted with deliberate indifference to his medical condition; and they denied, delayed or intentionally interfered with his medical care and they did so with deliberate indifference." (ECF No. 13, ¶ 43.)
III. Procedural Background
On October 17, 2011, following screening of Plaintiff's first amended complaint, the Magistrate Judge issued Findings and Recommendations. In relevant part, the Magistrate Judge found "Plaintiff's allegations that, between May and October 6, 2008, he informed Defendants Doe One, Doe Two, Araich, Chen, Shittu, Ashby, Lopez, and Spaeth that his pain medication was ineffective and they failed to act and that Defendant Doe Three removed his staples without pain medication [were] sufficient to state a cognizable claim." (ECF No. 17, p. 6.)
On March 12, 2012, the District Judge adopted the Findings and Recommendations in full, and ordered that the action proceed on the first amended complaint against Defendants Araich, Chen, Shittu, Ashby, Lopez, Spaeth, Doe One, Doe Two, Doe Three and Schaefer for deliberate indifference to medical needs. (ECF No. 30.)
On April 2, 2012, the Court directed the United States Marshal to serve the first amended complaint. (ECF No. 33.) Defendant Ashby waived service of summons on November 5, 2012. (ECF No. 55.) Thereafter, on November 8, 2012, Defendant Ashby filed the ...