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Salas v. Burns

United States District Court, S.D. California

April 7, 2017

LARRY SALAS, Plaintiff,
R.N. BURNS, Defendant.




         Plaintiff Larry Salas, a state prisoner proceeding pro se and in forma pauperis, filed a Second Amended Complaint on July 5, 2016, alleging civil rights violations pursuant to 42 U.S.C. § 1983 against Defendant Milissa Burns.[1] (ECF No. 6.) Presently before the Court is Defendant's Motion to Dismiss Second Amended Complaint and to Strike Case Citations and Legal Argument from the Second Amended Complaint. (ECF No. 16.)

         The Court submits this Report and Recommendation to United States District Judge John A. Houston pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1 of the Local Rules of Practice for the United States District Court for the Southern District of California. After a thorough review of Plaintiff's Second Amended Complaint, the parties' motion and opposition papers, and all supporting documents, and for the reasons discussed below, the Court RECOMMENDS that Defendant's Motion to Dismiss (ECF No. 16) be GRANTED and Defendant's Motion to Strike (ECF No. 16) be DENIED.


         Plaintiff is a state prisoner currently confined at the California State Prison, Solano in Vacaville, California. (ECF No. 22.) Prior to arriving at Solano, Plaintiff was temporarily confined at the San Diego Central Jail (“SDCJ”). (ECF No. 6 at 1.)[3] On July 15, 2015, Plaintiff was seen by an unidentified registered nurse at the SDCJ. (Id. at 3.) Plaintiff informed an unidentified nurse that he had an unstable right knee and that he came into custody wearing a knee brace for stability. (Id.) A few days later, Plaintiff was transferred to a cell on the fifth floor of the jail and assigned a top tier bunk. (Id.)

         On October 3, 2015, Plaintiff fell down the stairs at the SDCJ while carrying his mattress and belongings. (Id. at 6.) He sustained scrapes, bruises, lacerations, and swelling to his right knee and was taken to an outside hospital for treatment. (Id.) Doctors performed an x-ray and diagnosed Plaintiff with fluids and arthritis in the knee. (Id.) Plaintiff was released from the hospital with pain medication and a knee brace that prevented the knee from bending. (Id.) Plaintiff was also given instructions to not bend his knee, to stay off his knee, and to keep his leg elevated. (Id.) Once Plaintiff was back at the SDCJ, he met with Defendant Burns, a registered nurse. (Id.) Defendant Burns replaced Plaintiff's knee brace with an ace bandage and refused to give him pain medication. (Id.)


         Plaintiff initiated the present suit by filing a complaint in this Court on March 28, 2016. (ECF No. 1.) Plaintiff filed his Second Amended Complaint on July 5, 2016, naming R.N. Burns as a Defendant. (ECF No. 6.) Plaintiff alleges that Defendant Burns violated his constitutional right to freedom from cruel and unusual punishment. (Id. at 6.)

         On April 8, 2016, the Court granted Plaintiff's Motion for Leave to Proceed in Forma Pauperis. (ECF No. 3.) On August 19, 2016, Plaintiff filed a Motion for Appointment of Counsel (ECF No. 12), which the Court denied on September 7, 2016. (ECF No. 17.) Plaintiff filed another Motion for Appointment of Counsel on September 22, 2016. (ECF No. 21.) On October 12, 2016, the Court required Plaintiff to submit further evidence in support of his Motion for Appointment of Counsel. (ECF No. 25.) On November 3, 2016, Plaintiff complied by filing further evidence in support of his Motion for Appointment of Counsel. (ECF No. 28.) On November 21, 2016, the Court denied Plaintiff's second Motion for Appointment of Counsel. (ECF No. 29.)

         On September 7, 2016, Defendant Burns moved to dismiss the claims in Plaintiff's Second Amended Complaint asserted against her. (ECF No. 16.) Defendant also moved to strike all case citations and legal argument from the Second Amended Complaint. (Id.) Plaintiff filed an Opposition to Defendant's Motions on December 5, 2016 (ECF No. 30), and Defendant filed a Reply to Plaintiff's Opposition on December 13, 2016 (ECF No. 31).


         A. Legal Standards

         1. Motion to Dismiss for Failure to State a Claim

         The Federal Rules of Civil Procedure require that a plaintiff's complaint must provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard that Rule 8 announces does not require detailed factual allegations, and the statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citing Twombly, 550 U.S. at 555).

         A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Twombly, 550 U.S. at 555. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (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. (citing Twombly, 550 U.S. at 556). “[D]etermining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Cooney v. Rossiter, 583 F.3d 967, 971 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 679). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678-79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         In ruling on a Rule 12(b)(6) motion to dismiss, the court does not look at whether the plaintiff will “ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court may consider allegations contained in the pleadings, exhibits attached to the complaint, and documents and matters properly subject to judicial notice. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007). The court must assume the truth of the facts presented and construe all inferences from them in the light most favorable to the nonmoving party. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). However, the court is “not required to accept legal ...

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