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MacGregor v. Dial

United States District Court, E.D. California

March 26, 2015

KEVIN ANTHONY MacGREGOR, Plaintiff,
v.
DIAL, et al., Defendants.

AMENDED ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Upon consideration of the issues raised in Defendants' Objections to Magistrate Judge's Findings and Recommendations, ECF No. 76, the court sua sponte vacates the March 4, 2015 Order and Findings and Recommendations, ECF No. 75, and issues the following Amended Order and Findings and Recommendations:

Plaintiff is a California inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. ยง 1983. This action proceeds on plaintiff's first amended complaint, ECF No. 34, for violations of plaintiff's rights under the Eighth Amendment. Presently before the court are defendants' motion to dismiss the complaint on statute of limitations grounds and defendants' motion for partial summary judgment based on failure to exhaust administrative remedies. Both motions are fully briefed.

I. Background

Plaintiff's original complaint, filed on September 5, 2013, alleged that defendants Dr. Dial and Dr. James violated plaintiff's Eighth Amendment rights when they were deliberately indifferent to plaintiff's serious medical need for treatment of a hernia. ECF No. 1. Defendants Dial and James brought a motion to dismiss plaintiff's original complaint. ECF No. 30. Plaintiff then filed a first amended complaint, ECF No. 34, and defendants brought a motion to dismiss plaintiff's first amended complaint, ECF No. 36. By order dated March 27, 2014, the court ruled that the first amended complaint superseded the original complaint, and vacated defendants' motion to dismiss the original complaint. ECF No. 38.

Defendants' March 12, 2014 motion to dismiss plaintiff's first amended complaint raised statute of limitations and administrative exhaustion issues. In light of the Ninth Circuit's decision in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), which held that exhaustion issues should in most cases be presented in a motion for summary judgment rather than in a motion to dismiss under Rule 12(b), the court vacated defendants' motion to dismiss. ECF No. 43. The court permitted defendants to file a motion for summary judgment on the issue of administrative exhaustion and to re-file the portion of the vacated motion brought pursuant to Rule 12(b)(6) in a separate motion or in combination with a motion for summary judgment.

On May 6, 2014, defendants brought a motion to dismiss on statute of limitations grounds, ECF No. 45, and a separate motion for partial summary judgment alleging failure to exhaust administrative remedies, ECF No. 46. Plaintiff filed an opposition to defendants' motion to dismiss and a separate opposition to defendants' motion for summary judgment. ECF No. 51, 52. Defendants replied on June 26, 2014 and filed objections with respect to both of plaintiff's oppositions. ECF No. 53, 54, 55.

II. Defendants' Motion to Dismiss the First Amended Complaint

Defendants move to dismiss plaintiff's first amended complaint on the grounds that plaintiff's claims against defendants are barred by the statute of limitations.

A. 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."

B. Allegations of the First Amended Complaint[1]

Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) and brings this action alleging violations of plaintiff's Eighth Amendment rights "during his confinement by the [CDCR] at High Desert State Prison." ECF No. 34 at 5.

Plaintiff was transferred from San Quentin State Prison to High Desert State Prison on December 13, 2005. ECF No. 34 at 6. At this time, defendants Dr. Dial and Dr. James were licensed physicians working in a medical capacity in the delivery of health care services at High Desert State Prison. Id. at 6. Dr. James was plaintiff's designated physician. Id. at 11. Plaintiff states that between December 13, 2005 and March 5, 2006, he had six hernia-related emergencies, id. at 11, and alleges as follows:

December 26, 2005

On December 26, 2005 at approximately 11:30 p.m., plaintiff experienced "unbearable pain" when his hernia "protruded out." ECF No. 34 at 7. Plaintiff was taken to the clinic and examined by R.N. Flaughty, who informed defendant Dial of plaintiff's condition. Id. Dr. Dial instructed Flaughty to return plaintiff to his cell and to put plaintiff on the list for the doctor's line "ASAP." Id. Plaintiff complained to Flaughty that he was in too much pain to be returned to his cell without pain medication, but Flaughty said that decision was up to the doctor at the doctor's line and that plaintiff would have to ask the doctor for medication the following day. Id. Plaintiff was returned to his cell without treatment and suffered "extreme pain, " vomiting, nausea, and hiccups while curled up on the floor of his cell for over ten hours. Id.

January 10, 2006

On January 10, 2006 at approximately 1 a.m., plaintiff's hernia protruded to "the size of an egg." ECF No. 34 at 7. Plaintiff was taken to the clinic where Nurse Haherty examined plaintiff's hernia and gave him Ibuprofen, which did not relieve his pain. Id. at 7-8. Plaintiff requested stronger pain medication and informed the nurse that at San Quentin he had been prescribed Vicodin for his hernia pain, but the nurse advised plaintiff that she could not give him anything stronger than Ibuprofen. Id. at 8. Plaintiff was returned to his cell in severe pain with his hernia "still bulging." The nurse advised plaintiff that he was "on Doctor's Line for the morning." Id.

January 13, 2006

On January 13, 2006, plaintiff was examined by Dr. James at the doctor's line. ECF No. 34 at 8. Plaintiff explained that he had ongoing pain from a hernia "the size of an egg" and told Dr. James that prior to his transfer to High Desert State Prison, plaintiff had been scheduled for surgery. Id. Plaintiff asked Dr. James to schedule plaintiff for surgery, but James refused. Id. Dr. James explained that he saw no evidence of a hernia and that if plaintiff did have a hernia, it was not to the point where surgery was required. Id. Dr. James also told plaintiff that "Ibuprofen 400 mg is the strongest relief they give to inmates." Id. ...


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