Diaz v. Fox

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES 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 Second Amended Complaint (“SAC”) filed September 29, 2015. (ECF No. 20.) The court determined that service was appropriate for defendants Ferreira and Stankiewicz on claims that they were deliberately indifferent to plaintiff’s medical needs in violation of the Eighth Amendment. (ECF No. 21.)

         Before the court is defendants’ motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF No. 28.) Plaintiff has filed an opposition, and defendants have filed a reply. (ECF Nos. 31 & 33.) Having carefully considered the record and the applicable law, the undersigned will recommend that defendants’ 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. Discussion

         In the SAC, plaintiff alleges that defendants Stankiewicz and Ferreira were food service workers at California Medical Facility (“CMF”) who denied plaintiff nighttime snacks despite plaintiff’s medical chrono to receive them as part of a therapeutic diet for diabetes. (SAC at 2-3, 7-8, 11, 14.) Stankiewicz allegedly told plaintiff that his medical chrono “means nothing” and that she didn’t care whether he had a chrono. (Id. at 3.)

         The SAC does not indicate how many times each defendant allegedly refused to honor plaintiff’s chrono, the dates on which this alleged conduct occurred, or other details of the parties’ interactions. Nor does plaintiff allege any physical injury as a result of being denied diabetic snacks. The SAC does not causally link any physical harm to either defendant.

         Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). First, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Id. at 1059 (citing Estelle, 429 U.S. at 104).

         Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. Id. at 1060. This second prong - deliberate indifference - may be shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment .” Id. (internal quotations omitted).

         Defendants argue that the SAC alleges neither a “serious medical need” nor “actual injury, ” and for both reasons fails to state a claim. As to the first argument, plaintiff’s allegations that he is a longtime diabetic with a “continued need for diabetic [treatments]” is sufficient to allege a serious medical need. (SAC at 14.) See, e.g., Wilson v. Terhune, 2008 WL 4966312, *7 (E.D. Cal. Nov. 20, 2008) (prisoner’s diabetes a “serious medical need” at pleading ...