United States District Court, E.D. California
FINDINGS AND RECCOMMENDATIONS
M. COTA 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 defendants' unopposed motion to dismiss. (ECF No. 15).
Rogelio May Ruiz is currently an inmate at California State
Prison (CSP) in Represa, CA. See ECF No. 1, pg. 1.
Plaintiff names the following as defendants: (1) Vijay
Bodukam, (2) Bright, (3) S. Gates, and (4) J. Lewis.
Id. at 2. The Court notes that the complaint
contains multiple exhibits written in Spanish, as well as
sentences which are difficult to interpret. The following is
this Court's understanding of the allegations set forth
for Orthopedic Shoes and Pain Relief
submitted multiple requests to defendant Dr. Vijay Bodukam
for orthopedic shoes. See ECF No. 1, pg. 3.
Plaintiff alleges that in 2014, Dr. Robert Scharffenberg, a
non-party, had ordered a permanent “chrono” for
plaintiff to have orthopedic shoes. Id. Plaintiff
requires these shoes because of pain related to his ankles,
hips, and the uneven length of his legs. Id. He
claims to not be able to stand on his feet for more than two
hours a day without them. Id. After an X-ray was
conducted, Bodukam allegedly denied plaintiff's requests
for orthopedic shoes because he believed they were not
medically necessary. Id. A non-party radiologist
named Mr. Jojo told plaintiff, “Ruiz you have a piece
of bone…”, apparently meaning to say that
plaintiff had medical issues which needed addressing.
Id. Bodukam showed plaintiff a copy of the results
and told him that he was “good.” Id.
Plaintiff disagrees with Bodukam and calls him a
“liar”, but it is unclear from the complaint what
plaintiff alleges Bodukam lied about. Id.
was given Tylenol or ibuprofen, but the medication apparently
did not alleviate his pain and instead caused him nausea.
See ECF No. 1, pg. 4. On March 3, 2017, plaintiff
submitted a health care appeal for orthopedic shoes.
Id. On May 17, 2017, a Reasonable Accommodation
Request Panel, including defendant Bright, denied
plaintiff's request for orthopedic shoes and a renewal of
his morphine treatment for pain. Id. at 20. The
Panel denied the request because, at the time, plaintiff was
transferred to Corcoran State Prison. Id. On
December 5, 2017, defendant's request for orthopedic
shoes was denied by defendant Deputy Director J. Lewis.
See ECF No. 1, pg. 14. In his denial, Lewis cited
what appears to be Bright's evaluation and finding that
there was “no medical indication for orthotics at this
time.” Id; See also ECF No. 1, pg. 4.
Plaintiff also submitted a request for an MRI scan, but that
too was denied. Id. at 4.
for MRI Scan
3, 2018 plaintiff submitted another request for an MRI scan.
See ECF No. 1, pg. 5. Plaintiff's allegation
here is difficult to understand, but it appears he requested
this scan to assess the damage of a previous
“at[t]ack” that he endured on February 19, 2016.
Id. This attack resulted in plaintiff suffering from
a broken nose, and damage to his shoulders, hands, and
fingers. Id. This request was denied by doctors R.
Dhillon and S. Gates and they instead ordered X-ray
scans for plaintiff. Id. However,
plaintiff claims that they refuse to grant him the X-ray
“film photos.” Id.
STANDARD OF REVIEW
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).
Rule of Civil Procedure 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 Lopez v.
Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
their unopposed motion to dismiss, defendants argue
plaintiff's complaint fails to state any cognizable 8th
Amendment claims. For ...