United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
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.)
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.
Standards for a Motion to Dismiss
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.
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).
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).
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
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
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).
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).
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