United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANT’S MOTION TO DISMISS (DOCUMENT 27) THIRTY-DAY
L. BECK UNITED STATES MAGISTRATE JUDGE.
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
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
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.
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.
contends that Defendant’s neglect caused him physical
and mental harm.
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).
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).
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.