United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
DEFENDANT'S MOTION TO DISMISS THE ACTION BE GRANTED [ECF
Morris Roberson is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendant's motion for dismiss, filed
May 13, 2019.
action is proceeding on Plaintiff's conditions of
confinement claim against Defendant Pfeiffer.
stated, on May 13, 2019, Defendant Pfeiffer filed a motion to
dismiss. Plaintiff filed an opposition on July 1, 2019, and
Defendant filed a reply on July 8, 2019.
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
legal sufficiency of a claim, and dismissal is proper if
there is a lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240,
1241-42 (9th Cir. 2011) (quotation marks and citations
omitted). In resolving a 12(b)(6) motion, a court's
review is generally limited to the operative pleading.
Daniels-Hall v. National Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d
903, 910 (9th Cir. 2007); Schneider v. California Dept.
of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
omitted); Conservation Force, 646 F.3d at 1242;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The Court must accept the factual allegations as
true and draw all reasonable inferences in favor of the
non-moving party. Daniels-Hall, 629 F.3d at 998;
Sanders, 504 F.3d at 910; Morales v. City of Los
Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).
litigants are entitled to have their pleadings liberally
construed and to have any doubt resolved in their favor.
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th
Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090,
1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010).
Plaintiff returned from the hospital he was denied adequate
treatment for his joint pain, severe headaches, shortness of
breath, and chest pain; however Plaintiff was prescribed
Fluconzole for his Valley Fever. (1st Amd. Compl. ¶ 28.)
Plaintiff did not ...