Nguyen v. California Prison Health Service

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that the named defendants violated his Eight Amendment rights by deliberate indifference to his medical needs. ECF No. 15. Pending before the court are plaintiff’s motion for appointment of counsel, ECF No. 43, and defendant Nathanial K. Elam’s motion to dismiss, ECF No. 32.^[1] For the reasons stated below, plaintiff’s motion to appoint counsel is denied and it is recommended that defendant Elam’s motion to dismiss be granted.

         I. Background

         Plaintiff alleges that he suffered various injuries after being attacked by one of his cellmates on May 21, 2010. ECF No. 15 at 5-6. The next day, he complained to medical staff that the pain in his jaw and face made chewing food difficult. Id. at 8. He told an unidentified nurse at the unit clinic that he believed his jaw and at least one other facial bone were broken. Id. Between June 2, 2010 and August 31, 2010, plaintiff alleges that medical staff inappropriately delayed prescribing x-rays and a soft meal diet. Id. at 9-13. He also claims that he was denied adequate pain medication for a shoulder injury that predated the May assault. Id. at 12.

         On August 31, 2010, plaintiff received a first level response to an appeal he had filed regarding the purported inadequacies in his medical care. Id. at 13. Unsatisfied, he appealed to level two on September 19, 2010 and, on October 18, 2010, received a denial from defendant Elam which stated that his care was adequate and that money damages - which plaintiff’s appeal sought to recover - were beyond the scope of the appeals process. Id. at 14, 85-86. Now, plaintiff alleges that defendant Elam violated his rights by failing to provide him with a soft meal diet, failing to remedy the misconduct of his subordinates, and failing to “provide evidence upon request” in his appeal response. Id. at 16, 22-23.

         II. Plaintiff’s Motion to Appoint Counsel

         Plaintiff argues that his lack of legal training and formal education hamper his ability to successfully prosecute this case. ECF No. 43 at 2-3. Accordingly, he requests that the court appoint counsel to assist him in doing so. Id. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases, however. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional circumstances in this case and plaintiff’s motion is denied.

         III. Defendant Elam’s Motion to Dismiss

         A. Legal Standards

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55, 562-63, 570 (2007) (stating that the 12(b)(6) standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would entitle him to relief “has been questioned, criticized, and explained away long enough, ” and that having “earned its retirement, ” it “is best forgotten as an incomplete, negative gloss on an accepted pleading standard”). Thus, the grounds must amount to “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action. Id. at 555. Instead, the “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

         The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

         The court may disregard allegations contradicted by the complaint’s attached exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987)). The court may consider 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) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991)). “[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.

         In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

         B. ...