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McMillan v. Virga

United States District Court, E.D. California

May 7, 2015

JOHN McMILLAN, Plaintiff,
v.
TIM V. VIRGA, et al., Defendants.

FINDINGS AND RECOMMENDATIONS

CAROLYN K. DELANEY, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on the First Amended Complaint ("FAC") filed June 13, 2014 (ECF No. 9), which was ordered served on defendant Ma. (ECF No. 10.) Plaintiff alleges that Ma, a physician, was deliberately indifferent to plaintiff's serious medical need when he failed to issue plaintiff a medical chrono for a lower bunk. Plaintiff subsequently fell from the top bunk and was injured.

Before the court is defendant Ma's motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 22.) Plaintiff has opposed the motion. (ECF No. 23.) Having carefully considered the record and the applicable law, the undersigned will recommend that defendant's motion be denied.

II. Standards for a Motion to Dismiss

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 (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).

In ruling on a motion to dismiss, 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 "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading[.]" Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Gailbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002); see also Steckman v. Hart Brewing Co., Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (on Rule 12(b)(6) motion, court is "not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.") 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).

III. Allegations

Plaintiff alleges that, at all relevant times, Dr. Ma was his primary care provider at California State Prison-Sacramento. (FAC at 4.) He sues Ma (and original defendant Warden Virga[1]) as "individuals in their official capacities." (Id.) Plaintiff alleges that, upon arriving at CSP-Sac, he informed Dr. Ma that his right leg had "a steel rod in place from knee to ankle, nine pins and three screws." (Id.) Dr. Ma prescribed pain medication for plaintiff. (Id.)

"During the month of December 2011, plaintiff sought medical attention from Dr. Ma because... the housing cell did not provide a safe way for Plaintiff to get up or down from a top bunk and no step-ladder was attached to the cell bunks." (Id.) Dr. Ma did not issue plaintiff a medical accommodation chrono for a lower bunk. (Id.)

"In April 2012, ... plaintiff requested Dr. Ma issue a temporary low bunk chrono until Plaintiff['s] appeal for a medical accommodation is exhausted. Dr. Ma failed to act on Plaintiff's request [and] disregarded Plaintiff['s] safety concerns. Ma then increased Plaintiff's medication order for pain[.]" (Id. at 5.)

"On September 20, 2012, while getting down from the top bunk... Plaintiff fell [and] broke his right patella. Plaintiff suffered injuries which caused him to be ...


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