United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
M. KELLISON, UNITED STATES MAGISTRATE JUDGE.
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is defendant Bodenhamer's motion to dismiss (Doc.
names the following as defendants: (1) N. Riaz; and (2) D.
Bodenhamer. Plaintiff states that he was injured by prison
staff while housed at Corcoran State Prison. Plaintiff
further states that he “won a successful
settlement” in Garcia v. Masiel, et al., E.D.
Cal. case no. 1:07-CV-1750-AWI-SMS, “wherein plaintiff
alleged excessive force causing injury.” Plaintiff
Although not specifically written, yet certainly implied,
plaintiff was led to believe the medical treatments and pain
medication that would be needed would be forever provided as
long as he remained in the custody of the CDCR, and for that
reason did not believe at the time of settlement that he
needed to include those terms in the written instrument of
claims that, on August 25, 2015, defendant Riaz, a prison
doctor, “took plaintiff's pain management
medications without any regard to the extensive historical
record of need. . . .” Plaintiff alleges that defendant
Riaz acted consistent with “CDCR's use of
sweeping.” According to plaintiff:
Plaintiff has personally witnessed CDCR's use of
sweeping, arbitrary unconstitutional blanket instructions
where a [sic] institution will send Dr.'s throughout an
institution with instructions to take any and all pain
medications for inmates receiving chronic pain management. No
real method or justification is used, and it is because of
one of these “sweeps” that plaintiff became
victim of that this claim arises.
also claims: “When plaintiff complained of the obvious
denial of any objective review for his appeal, CDCR then sent
a Dr.'s ‘assistant, ' defendant
Bodenhamer.” Plaintiff alleges:
Plaintiff believes, and therefore alleges herein, that
defendant Bodenhamer, without the qualifications, expertise,
education, or any other reasonable means to believe she was
competent to do so, denied plaintiff's request to be
provided treatment as proved adequate and appropriate by
specialists and experts, in an effort at containing the
improper, and unconstitutional use of blanket instructions to
prison Dr.'s, by making sure inmates are not allowed to
have their appeals (or staff's actions) heard by anyone
“out-side the loop.” Bodenhamer's actions
were intentional, goal oriented, and unconstitutional, where
her denial of relief was done to ensure [sic] plaintiff was
denied pain relief, as she, herself, can not even legally
write a prescription without a Dr.'s approval. To review
the acts of an actual Dr. who has a license to practice
medicine is proof in itself.
STANDARD FOR MOTION TO DISMISS
considering a motion to dismiss, the court must accept all
allegations of material fact in the complaint as true.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court must also construe the alleged facts in the light
most favorable to the plaintiff. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); see also Hosp.
Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th
Cir. 1994) (per curiam). All ambiguities or doubts must also
be resolved in the plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However, legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro
se pleadings are held to a less stringent standard than those
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972).
8(a)(2) requires only “a short and plain statement of
the claim showing that the pleader is entitled to
relief” in order to “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, in order to survive dismissal for
failure to state a claim under Rule 12(b)(6), a complaint
must contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Id. at 555-56.
The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.”
Id. 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, 129
S.Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement, ' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “Where a complaint pleads facts that
are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility for entitlement to
relief.” Id. (quoting Twombly, 550
U.S. at 557).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
and (3) documents and materials of which the court may take
judicial notice, see Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994).
leave to amend must be granted “[u]nless it is
absolutely clear that no amendment can cure the
defects.” Lucas v. Dep't of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam); see also ...