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 and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are defendants' motion to dismiss (ECF No. 19) and plaintiff's motion for default judgment (ECF No. 21). The motion to dismiss was filed on June 21, 2012 on behalf of defendants Lahey, Naku, Traquina and Villote, and defendant Basi filed a notice of joinder (ECF No. 20) on June 29, 2012. Plaintiff filed his opposition to the motion on July 12, 2012 (ECF No. 22), and defendants subsequently replied (ECF Nos. 23, 24).
The complaint claims that defendants Dr. Amrik Basi, Nurses Lahey and Villote, and Drs. Traquina and Naku subjected plaintiff to inadequate medical care at California State Prison (CSP)-Solano in violation of plaintiff's Eighth Amendment rights. Plaintiff alleges that defendant Basi prescribed a medication called Terazosin for plaintiff's enlarged prostate, without advising plaintiff of the medication's risks and explaining the surgical alternatives. As a side-effect of the Terazosin, plaintiff developed a blood clot that caused blindness in his left eye. Defendants Basi, Lahey and Villote failed to treat the blindness, which therefore become permanent. Plaintiff contends that Dr. Traquina, the prison's chief medical officer, and Dr. Naku, the chief pharmacist, failed to ensure that warning labels and/or leaflets are included with prescribed medication. Plaintiff seeks money damages and injunctive relief in the form of an order that Drs. Traquina and Naku provide warning labels with all medications..
MOTION FOR DEFAULT JUDGMENT
Default may be entered by the clerk when a defendant fails to plead or otherwise defend. Fed. R. Civ. P. 55(a). However, a defendant's default does not automatically entitle the plaintiff to a court-ordered judgment. Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986). Default judgments are ordinarily disfavored, but may be granted in the court's discretion under certain circumstances not present here. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth factors to be considered on motion for default judgment). The undersigned need not consider the Eitel factors because there has been no default. The procedural history of the case demonstrates that no defendant has failed to defend.
Plaintiff argues that he is entitled to a default judgment against defendants Naku and Basi because they failed to respond to his complaint within 60 days of service. ECF No. 21. An executed waiver of service of summons was returned on behalf of defendant Naku on June 19, 2012. ECF No. 18. The waiver was dated as signed on June 11, 2012. The waiver indicates that defendant Naku was to file an answer or Rule 12 motion within 60 days of April 6, 2012. The previously served defendants Lahey, Traquina and Villote requested an extension of time on May 18, 2012 (ECF No. 16) and were granted until June 21, 2012 to file their motion to dismiss. ECF No. 17. The motion to dismiss, filed on June 21, 2012, was filed on behalf of defendant Naku as well.
Defendant Basi noticed his joinder in the pending motion to dismiss on June 29, 2012, yet an executed summons indicates that defendant Basi was not served until October 9, 2012. ECF No. 25. By order filed on December 4, 2012, Dr. Basi was required to reimburse the United States Marshal's Service for the cost of personal service or show cause for his failure to waive service. No statement of cause having been filed within the time provided, defendant Basi should have paid costs no later than December 18, 2012.
Plaintiff does not demonstrate a basis for finding that either defendant is in default. Any problems with service were long ago resolved, and all defendants have appeared and are actively defending by participating in the instant motion for dismissal.
Defendants move for dismissal of this action under Fed. R. Civ. P. 12(b)(6) on the grounds that: (1) plaintiff's injunctive relief claims are moot and/or precluded by the Plata prisoner class action; (2) the claims are time-barred; and (3) the complaint fails to state claims under the Eighth Amendment upon which relief can be granted.
Legal Standard for Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)
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 v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Availability of Injunctive Relief
The complaint alleges that defendants Traquina and Narku, the officials responsible for medical care policies and pharmaceutical practices at CSP-Solano, failed to require warning labels and information about possible side effects to inmates receiving medication. This failure to warn was a contributing cause of plaintiff's blindness, because he would not have taken Terazosin had he been aware of the risks. Plaintiff alleges that these defendants had an improper and unconstitutional policy of not providing CSP-Solano inmates with the drug information that patients must receive under state and federal law. The complaint seeks injunctive relief in the form of an order ...