United States District Court, E.D. California
DANIEL G. VALENCIA, Plaintiff,
WINFRED KOKOR, M.D., Defendant.
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION TO DISMISS (Document 26) THIRTY-DAY OBJECTION DEADLINE
DENNIS L. BECK, Magistrate Judge.
Plaintiff Daniel G. Valencia ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on August 13, 2013. He filed a supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d) on May 24, 2014. The action is proceeding against Defendant Wilfred Kokor, M.D., for violation of the Eighth Amendment.
On October 28, 2014, Defendant filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief could be granted. Defendant also moved to dismiss on qualified immunity grounds. After receiving numerous extensions of time, Plaintiff opposed the motion on February 2, 2015. Defendant filed his reply on February 9, 2015, and the motion is therefore deemed submitted pursuant to Local Rule 230(1).
A. PLAINTIFF'S ALLEGATIONS
In his August 30, 2013, complaint, Plaintiff alleges that Defendant failed to treat his pain with narcotics that other physicians had prescribed in the past. He also alleges that Defendant refused to review his medical file, which would have revealed that Plaintiff has taken every non-steroidal anti-inflammatory drug ("NSAIDs") for his various ailments, but only narcotic medications worked. Plaintiff further alleges that Defendant refuses to recommend medications that will not damage his liver.
According to his inmate health care appeal documents, Plaintiff was examined on October 3, 2012, for chronic care follow-up and medications. Plaintiff informed the treating source that his pain medication was not working (Oxcarbazepine) and requested Morphine. Plaintiff was advised that narcotics go through the Medical Authorization Review committee. The physician increased Plaintiff's Oxcarbazepine and continued Tylenol and Indomethacin.
Plaintiff's October 17, 2012, health care appeal alleges that Defendant lied to him and told him that "they" stopped pain treatments for prisoners with old injuries. He also alleges that Defendant would not talk about it or treat his injuries, and offered only psychotropic medications.
Plaintiff saw Defendant on November 27, 2012, in connection with issues raised in his medical appeal. Plaintiff's medical condition and treatment plan were discussed. Plaintiff was taking Acetaminophen and Indomethacin for pain, and there was no indication for narcotics such as Morphine, Tramadol or Gabapentin.
Plaintiff was examined by the yard physician on January 3, 2013. Plaintiff requested Tramadol or narcotics for pain. Plaintiff was taking Indomethacin, Acetaminophen and Oxcarbazepine.
Plaintiff's health care appeal was denied at the Third Level on July 29, 2013. According to the denial, Plaintiff was most recently evaluated on July 11, 2013. The treatment plan was Acetaminophen with codeine for two weeks, with no indication for sustained narcotics, which Plaintiff had been weaned off of.
Plaintiff's May 23, 2014, supplemental complaint repeats the same allegations as his original complaint. He adds an allegation that after he filed this action, Defendant treated Plaintiff with narcotics for fourteen days. Plaintiff attaches dozens of pages of medical records, from 2004 through 2013, which show that he took Morphine and Gabapentin at various times.
B. FAILURE TO STATE A CLAIM
1. Legal Standard
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. ...