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Garcia v. Purdy

United States District Court, E.D. California

July 22, 2016

ALEJANDRO GARCIA, Plaintiff,
v.
PURDY, Defendant.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT’S MOTION TO DISMISS (DOCUMENT 27) THIRTY-DAY OBJECTION DEADLINE

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Alejandro Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on June 2, 2014, in the United States District Court for the Southern District of California, and it was transferred to this Court on June 24, 2014. The action proceeds on Plaintiff’s Second Amended Complaint for violation of the Eighth Amendment against Defendant Purdy.

         Defendant Purdy filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 18, 2016. Plaintiff filed his opposition on June 6, 2016, and Defendant Purdy filed a reply on June 9, 2016. The motion is ready for decision pursuant to

         DISCUSSION

         A. PLAINTIFF’S ALLEGATIONS

         Plaintiff alleges that on September 2, 2013, he and his cellmate told Officers Corona and Flores that his blood sugar was a little low and that he wanted to see medical. The officers called and were told that medical was not there, that Plaintiff would be seen later, and that Plaintiff should stop complaining or he’d receive a CDCR 115. At that time, Plaintiff had a seizure. His cellmate gave him jellies to raise his blood sugar level and called “man down.” ECF No. 21, at 3. Once again, the officers called medical and told medical that Plaintiff had a seizure. In response, Plaintiff was told to stop complaining.

         On September 3, 2013, Plaintiff asked Defendant why she and other medical staff refused to go and treat Plaintiff for low blood sugar. Defendant told him that it was about to be shift change, and they were not going to deal with him. Defendant began to laugh. Plaintiff told Defendant that his life is not a joke and she tried to apologize.

         Plaintiff contends that Defendant’s neglect caused him physical and mental harm.

         B. LEGAL STANDARD

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court’s review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

         To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         C. SCREENING

         Plaintiff’s Second Amended Complaint was screened and the Court determined it stated a claim upon which relief may be granted. 28 U.S.C. § 1915A; Nordstrom, 762 F.3d at 908 (“Dismissal for failure to state a claim under § 1915A ‘incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).’”) (quoting Wilhelm, 680 F.3d at 1121); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (section 1915(e)(2)(B)(ii) screening standard is the same as Rule 12(b)(6) standard). Defendant’s acknowledgement that the complaint was screened is noted; however, she presents no arguments which persuade the Court it erred in determining that Plaintiff’s Eighth Amendment claim was cognizable or that any other grounds justifying relief from the screening order exist. See Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (“A district court abuses its discretion in applying the law of the case doctrine only if (1) the first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result.”). As explained below, Plaintiff’s allegations are sufficient to allow him to proceed past the pleading stage.

         D. ...


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