United States District Court, Eastern District of California
Darius Sims, Plaintiff, Pro se, Ione, CA.
For Scott Heatley, E Horowitz, C. Smith, Defendants: Michelle L. Angus, LEAD ATTORNEY, Attorney General's Office of the State of California, Sacramento, CA.
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss. Plaintiff filed two oppositions to the motion, and defendants filed a reply. For the following reasons, the undersigned partially grants defendants' motion to dismiss, and grants plaintiff leave to file a second amended complaint.
II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than " naked assertions, " " labels and conclusions" or " a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In other words, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal,
556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
III. Plaintiff's Amended Complaint
This action is proceeding on plaintiff's amended complaint in which he claims that defendants Horowitz, Heatley, and Smith were deliberately indifferent to plaintiff's severe health problems in violation of the Eighth Amendment. (ECF No. 12.) Plaintiff avers that defendant Heatley changed plaintiff's medications without plaintiff's knowledge, and that the different medication gave plaintiff terrible side effects. (ECF No. 12 at 5.) Plaintiff claims that defendant Horowitz changed plaintiff's medication upon his arrival at Mule Creek State Prison without " merits, " or concern for plaintiff, and told plaintiff " if [he] wanted medical care [he] should not have come to prison." (ECF No. 12 at 5.) Plaintiff states that defendant Smith " has only written to" plaintiff, and that when plaintiff went to the emergency room due to his cluster migraine headaches, or his heart attack on October 20, defendant Smith's statements were " incorrect and misleading." (ECF No. 12 at 6.) Plaintiff claims that he was not given migraine medication for extreme headaches in 2013, and that despite acute gout attacks in 2012 and 2013, plaintiff was not given gout medication until the end of 2013. (ECF No. 12 at 7.)
Plaintiff states that he " attached exhibits to show facts of mistreatment, cruelty, and the health care 602 process [he] . . . went through over the years of mistreatment." (ECF No. 12 at 3.) Plaintiff provided numerous exhibits with his amended complaint and with his oppositions to the motion to dismiss, including copies of his inmate appeals and responses by prison officials.
IV. Motion to Dismiss
Defense counsel argues that plaintiff's claims are impermissibly based solely on defendants Dr. Heatley's and Dr. Smith's participation in reviewing plaintiff's inmate appeals; plaintiff's complaint and its exhibits demonstrate that each defendant provided plaintiff with reasonable and appropriate medical treatment and did not act with deliberate indifference; and plaintiff's complaint does not allege facts giving rise to a claim of deliberate indifference to a serious medical need as a matter of law; and defendants are each entitled to qualified immunity because a reasonable appeals reviewer in Dr. Heatley's and Dr. Smith's position would not have believed their review of plaintiff's appeals was constitutionally deficient, and their review of the appeals does not amount to a constitutional violation because plaintiff has no constitutional right to a ...