United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court is defendant Tesluk's motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
No. 18.) For the reasons stated herein, the undersigned
recommends that defendant's motion be granted.
Legal Standard for Motion to Dismiss Brought Pursuant to
Federal Rule of Civil Procedure 12(b)(6)
12(b)(6) of the Federal Rules of Civil Procedures provides
for motions to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), the court must
accept as true the allegations of the complaint in question,
Erickson v. Pardus, 551 U.S. 89 (2007), and construe
the pleading in the light most favorable to the plaintiff.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969);
Meek v. County of Riverside, 183 F.3d 962, 965 (9th
Cir. 1999). Still, to survive dismissal for failure to state
a claim, a pro se complaint must contain more than
“naked assertions, ” “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,
“[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, 678
(2009). Furthermore, a claim upon which the court can grant
relief must have facial plausibility. 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.” Iqbal, 556 U.S.
at 678. Attachments to a complaint are considered to be part
of the complaint for purposes of a motion to dismiss for
failure to state a claim. Hal Roach Studios v. Richard
Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.
motion to dismiss for failure to state a claim should not be
granted unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims which would
entitle him to relief. Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). 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).
action proceeds on the original complaint against defendants
Fox, Nguyen, Tesluk and Win. Defendants Fox, Nguyen and Win
have filed answers. (ECF Nos. 22, 30.)
alleges that defendants Fox, Nguyen and Win are employed at
the Deuel Vocational Institution (“DVI”). (ECF
No. 1 at 5-6.) Plaintiff alleges that defendant Tesluk is a
medical doctor with an office at 400 East Orangeburg Avenue,
Suite 2, Modesto, California. (Id. at 8.) Plaintiff
alleges that defendant Tesluk is “under contract with
the Department of Corrections and Rehabilitation (California)
at DVI to perform” cataract/implant surgery, retina
surgery, refractive surgery and oculoplastic surgery.”
alleges that defendant Tesluk provided inadequate medical
care in violation of the Eighth Amendment and California
Government Code § 845.6. (Id. at 18-19, 22-23.)
pending motion, defendant Tesluk moves to dismiss
plaintiff's claim for violation of California Government
Code § 845.6. (ECF No. 19.) Defendant argues that
California Government Code § 845.6 only authorizes
claims against a public entity or public employee, and that
defendant Tesluk is neither.
Government Code § 845.6 provides that “a public
employee, and the public entity where the employee is acting
within the scope of his employment, is liable if the employee
knows or has reason to know that the prisoner is in need of
immediate medical care and he fails to take reasonable action
to summon such medical care.” Cal. Gov't Code
§ 845.6. In order to prove a claim under § 845.6,
plaintiffs must establish three elements: “(1) the
public employee knows or has reason to know of the need, (2)
of immediate medical care, and (3) fails to take reasonable
action to summon such medical care.” Castaneda v.
Dep't of Corr. & Rehab., 212 Cal.App.4th 1051,
1070 (2013) (emphasis in original).
text of § 845.6 makes clear that liability under that
section is limited to public employees or public entities.
Lawson v. Superior Court, 180 Cal.App.4th 1372, 1398
(2010). According to the Government Code, a public employee
is an employee of a public entity, and a public entity
includes “a county, city, district, public authority,
public agency, and any other political subdivision or public
corporation in the State.” Cal. Gov't Code
§§ 811.2, 811.4. Furthermore, an
“employee” under the Government Code “does
not include an independent contractor.” Cal. Gov't
Code § 810.2.
noted by defendant, in the complaint plaintiff alleges that
defendant Tesluk was “under contract” with the
California Department of Corrections and Rehabilitation
(“CDCR”). Plaintiff does not allege that
defendant Tesluk was employed by CDCR. A letter to plaintiff
from defendant Tesluk is attached as an exhibit to
plaintiff's complaint. (ECF No. 1 at 44.) This ...