United States District Court, E.D. California
ORDER & FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action filed pursuant to 42 U.S.C. § 1983. This matter is before the court on the motion to dismiss plaintiff's First Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), brought on behalf of defendants Quevedo and Wuerth. Plaintiff has filed an opposition to the motion, and defendants have filed a reply. For the reasons that follow, the undersigned recommends that defendants' motion to dismiss be granted, but that plaintiff also be granted leave to file a Second Amended Complaint.
I. Procedural Background
Plaintiff, who is currently incarcerated at Salinas Valley State Prison, proceeds on his First Amended Complaint. ("FAC, " ECF No. 28.) Plaintiff contends that defendants were deliberately indifferent to his serious medical needs while he was incarcerated at California State Prison-Sacramento.
At screening, the court found that plaintiff's initial complaint stated potentially-cognizable claims for relief under a theory of deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment. Plaintiff was permitted to proceed against defendant Correctional Officers Wuerth and Quevedo, as well as previously-named defendant Nurse Doud. (ECF No. 6.) By subsequent order, filed October 22, 2013, defendant Doud was dismissed from this action without prejudice due to plaintiff's inability to provide the information necessary to serve process on her. (ECF No. 25; see also ECF Nos. 19, 20.) The remaining defendants, Wuerth and Quevedo, moved to dismiss plaintiff's complaint for failure to state a claim on which relief can be granted. (ECF No. 22.) By order filed August 1, 2014, the court granted defendants' motion to dismiss, finding that plaintiff had failed to allege the subjective component of a deliberate indifference claim. (ECF No. 27.) Plaintiff was granted leave to file an amended complaint at that time. On August 18, 2014, plaintiff filed the operative First Amended Complaint. (ECF No. 28.) On September 2, 2014, defendants filed the instant motion to dismiss the FAC. (ECF No. 31.) Plaintiff filed an opposition (ECF No. 35), and defendants, a reply (ECF No. 36).
Also pending before the court is plaintiff's motion for appointment of counsel. (ECF No. 34.)
B. Factual Allegations
The factual allegations in the FAC regarding the incident on which plaintiff sues are set forth in their entirety as follows:
13. On 7-7-11 plaintiff informed the following CDCR custody and medical staff: C/O Viles, (LVN) Doud with C/O Quevedo, C/O Wuerth was by notified C/O Viles that plaintiff had a need to be seen by a registered nurse in the infirmary for extreme dizzyness.
16. Plaintiff alleges his condition of feeling dizziness should have been treated as a medical emergency as the policy of CDCR mandates.
17. Defendant C/O Wuerth and LVN Doud had even forgotten nor could recall at a latter appeal inquiry that plaintiff needed medical care.
19. Plaintiff attempted to lay down in his assigned bunk located on the top. A unsafe area for inmates who can become dizzy or experience strokes from high blood pressure an extreme "flaw" in the policies administered at SAC.
20. Plaintiff black-out and fell to the floor and suffered from injuries to plaintiff's head and right shoulder injuries and had to wear a neck brace.
21. Plaintiff's head injuries contributes to the mental illnesses and constant migrain headaches plaintiff endures.
22. Plaintiff's right shoulder injuries are still present effecting plaintiff's right side upper mobility experiencing extreme chronic pain and limited range of movement.
23. Plaintiff received minimum medical care from the medical staff at SAC attempting to minimize the injuries I actually suffered from willful neglect and indifference earlier that day.
24. Plaintiff suffers from neck pains in the winter time of the year, no relief has been offered or provided for from any ...