United States District Court, S.D. California
REPORT AND RECOMMENDATION: (1) GRANTING
DEFENDANT'S MOTION TO DISMISS CLAIMS AGAINST DEFENDANT
BURNS (2) DENYING DEFENDANT'S MOTION TO STRIKE CASE
CITATIONS AND LEGAL ARGUMENT [ECF NO. 16]
JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE.
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. (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.)
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
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.) 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.)
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
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.)
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.)
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).
Motion to Dismiss for Failure to State a Claim
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).
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).
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 ...