United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, who proceeds without counsel and in
forma pauperis, in this civil rights action filed pursuant to
42 U.S.C. § 1983. This case proceeds on plaintiff's
original complaint against defendants Lamb and RN Ramirez.
Presently pending is defendant Lamb's motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). For the
reasons that follow, the undersigned recommends that
defendant Lamb be granted qualified immunity, and that this
action be dismissed.
alleges that defendant Lamb, a correctional counselor at Mule
Creek State Prison, responsible for assigning inmates to bus
routes for transfer to different prisons, failed to route
plaintiff on a bus that would not require a layover at Wasco
State Prison, an institution located in an area where
coccidioidomycosis, also known as “Valley Fever,
” or “cocci, ” is high risk or endemic,
particularly for inmates, like plaintiff, who suffer from
Non-Hodgkins T-cell lymphoma. In addition to plaintiff's
medical records reflecting such diagnosis, plaintiff alleges
that he has been designated as “Cocci Area 1 and Area
2” restricted, confirming that due to his lymphoma
diagnosis, being exposed to elevated levels of the cocci
fungus (prevalent in the San Joaquin Valley), could induce
serious illness, including death. Plaintiff alleges that both
defendant Lamb, and defendant Ramirez, a Registered Nurse at
Mule Creek State Prison, responsible for reviewing medical
records for inmates being transferred, were aware of
plaintiff's restrictions yet failed to either stop or
re-route his transfer. Plaintiff filed an emergency appeal
challenging the transfer, but the emergency appeal was not
addressed in time to stop or re-route his transfer. Plaintiff
seeks money damages.
Motion to Dismiss: Legal Standards
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).
the Eighth Amendment, “prison officials are . . .
prohibited from being deliberately indifferent to policies
and practices that expose inmates to a substantial risk of
serious harm.” Parsons v. Ryan, 754 F.3d 657,
677 (9th Cir. 2014); see also Farmer v. Brennan, 511
U.S. 825, 847 (1994) (prison official violates Eighth
Amendment if he or she knows of a substantial risk of serious
harm to an inmate and fails to take reasonable measures to
avoid the harm). Deliberate indifference occurs when
“[an] official acted or failed to act despite his
knowledge of a substantial risk of serious harm.”
Farmer, 511 U.S. at 841. Thus, a prisoner may state
“a cause of action under the Eighth Amendment by
alleging that [prison officials] have, with deliberate
indifference, exposed him to [conditions] that pose an
unreasonable risk of serious damage to his future
health.” Helling v. McKinney, 509 U.S. 25, 35
second step, showing ‘deliberate indifference, '
involves a two part inquiry.” Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).
“First, the inmate must show that the prison officials
were aware of a ‘substantial risk of serious harm'
to an inmate's health or safety.” Id.
(quoting Farmer, 511 U.S. at 837). “This part
of [the] inquiry may be satisfied if the inmate shows that
the risk posed by the deprivation is obvious.”
Thomas, 611 F.3d at 1150 (citation omitted).
“Second, the inmate must show that the prison officials
had no ‘reasonable' justification for the
deprivation, in spite of that risk.” Id.
(citing Farmer, 511 U.S. at 844 (“[P]rison
officials who actually knew of a substantial risk to inmate
health or safety may be found free from liability if they
responded reasonably.”) (footnote omitted).
the qualified immunity doctrine, government officials acting
in their official capacities are immunized from civil
liability unless their actions “violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (citations omitted).
The qualified immunity analysis includes two prongs: (1) the
facts must allege or show “a violation of a
constitutional right”; and (2) the right must be
“‘clearly established' at the time of
defendant's alleged misconduct.” Id.
(citations omitted). When engaging in qualified immunity
analysis, district courts are required to consider the law at
the time the plaintiff's injury occurred. Robinson v.
Prunty, 249 F.3d 862, 866 (9th Cir. 2001).
may “exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the
particular case at hand.” Id. at 236. In
resolving these issues, the court must view the evidence in
the light most favorable to plaintiff and resolve all
material factual disputes in favor of plaintiff. Martinez
v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
“[P]laintiff bears the burden of proof that the right
allegedly violated was clearly established.”
Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir.
2014) (citation omitted). If the law is determined to be
clearly established, the next question is whether, under that
law, a reasonable official could have believed his conduct
was lawful. Act Up!/Portland v. Bagley, 988 F.2d
868, 871-72 (9th Cir. 1993).
measuring rod for determining whether an official's
conduct violates a plaintiff's constitutional right was
set forth by the Supreme Court in Ashcroft v.
al-Kidd, 131 S.Ct. 2075, 2083 (2011). “A
Government official's conduct violates clearly
established law when, at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently
clear' that every ‘reasonable official would have
understood that what he is doing violates that
right.'” Lal v. California, 746 F.3d 1112,
1116 (9th Cir. 2014) (citation omitted). As the Supreme Court
“We have repeatedly told courts . . . not to define
clearly established law at a high level of generality.”
Al-Kidd, supra, at 742, 131 S.Ct. 2074. The
dispositive question is “whether the violative nature
of particular conduct is clearly established.”
Ibid. (emphasis added). This inquiry
“‘must be undertaken in light of the specific
context of the case, not as a broad general
proposition.'” Brosseau v. Haugen, 543
U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per
curiam) [citation omitted].
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015).
“In other words, ‘existing precedent must have
placed the statutory or constitutional question beyond
debate.'” Carroll v. Carman, 135 ...