United States District Court, S.D. California
ORDER GRANTING DEFENDANT CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION'S MOTION TO DISMISS (Doc. 29)
PETER C. LEWIS, Magistrate Judge.
David Robert Bell ("Plaintiff") is a state prisoner incarcerated in Corcoran, California, proceeding pro se and in forma pauperis. (See Docs. 1, 10.) Plaintiff's complaint alleges violations of the Civil Rights Act, 42 U.S.C. §§ 1983, et seq., and he seeks monetary relief jointly and severally against each defendant. (See Doc. 1.)
Presently before the Court is defendant California Department of Corrections and Rehabilitation's (the "CDCR") motion to dismiss itself from the suit pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 29.) The CDCR asserts immunity from suit in federal court pursuant to the Eleventh Amendment. (Id.)
For the following reasons, the Court GRANTS defendant CDCR's Motion to Dismiss.
Plaintiff was formerly incarcerated at the Richard J. Donovan Correctional Facility and the RJDCF-Medical Facility-D. (Doc. 1 at 6.) While incarcerated, Plaintiff made numerous complaints related to spinal and shoulder pain. (See Doc. 1, passim.)
Plaintiff's first request for medical care was dated May 4, 2012. (Id. at 6.) He was examined by Nurses Bersamin and Velardi three days later, on May 7, 2012, and the nurses made no diagnosis regarding his condition. (Id. at 6.) Similar requests were made on May 15, July 2, and July 3, 2012. (Id.)
Eventually Plaintiff was seen by Dr. Martinez on July 17, 2012, and an MRI was scheduled. (Id. at 12-13.) The MRI took place on August 4, 2012. (Id. at 12.) Following the MRI, Plaintiff was transported to Tri-City Medical Center for care. (Id. at 13.) After a second MRI at Tri-City Medical Center, Dr. Kevin Yoo (a Tri-City doctor) told Plaintiff that his, "condition could have been treated with antibiotics for para-spinal abscess, " and that Plaintiff "had not been receiving proper medical treatment at the prison' and not in a timely manner'." (Id.) Dr. Yoo concluded that "surgery was inevitable because plaintiff was too far along' and his abscess was congruently attached to a nerve root'." (Id.)
Shortly after the surgery Plaintiff continued to complain that his lower back and legs were in pain. (Id. at 14.) He contacted Dr. Yoo at Tri-City Medical Center, who examined Plaintiff via "Telemedicine, " and prescribed 30mg morphine, twice daily, and ordered another MRI with higher contrast of the lumbosacral spine. (Id.) On the same day, Dr. Thompson, a doctor at Avenal State Prison, examined Plaintiff and asserted that Dr. Yoo was merely a consultant, while Dr. Thompson was the attending physician. (Id.) Dr. Thompson disagreed with Dr. Yoo's prescription of morphine, but agreed to schedule another MRI. (Id.)
Plaintiff underwent a third MRI on December 22, 2012. (Id. at 15.) Following the MRI, he underwent surgery to remove a "mass" from his lower lumbar spine, and had a titanium rod implanted in his back. (Id. at 15-16.)
III. STANDARD FOR REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a cognizable legal theory or for failure to state sufficient facts under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). When reviewing the sufficiency of a complaint, the court must assume the truth of all factual allegations and construe them in a ...