Chavarria v. Green et al

Filing 31

FINDINGS and RECOMMENDATIONS Recommending that Defendants' Rule 12(b)(6) 24 Motion to Dismiss be Granted in Part and Denied in Part; Objections, if any, Due within Thirty Days signed by Magistrate Judge Gary S. Austin on 2/10/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/16/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 1:10-cv-02324-LJO-GSA-PC ANTHONY CHAVARRIA, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS‟ RULE 12(b)(6) MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART (Doc. 24.) vs. P.A. GREEN, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 18 19 I. BACKGROUND 20 Anthony Chavarria (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now 22 proceeds on Plaintiff‟s original Complaint, filed on December 14, 2010, against defendants Dr. 23 Duenas, Physician‟s Assistant (P.A.) Green, and P.A. Wilson (“Defendants”), for inadequate 24 medical care in violation of the Eighth Amendment. (Doc. 1.) 25 On July 28, 2014, Defendants filed a Rule 12(b)(6) motion to dismiss for failure to state 26 a claim. (Doc. 24.) On November 10, 2014, Plaintiff filed an opposition to the motion. (Doc. 27 28.) On November 12, 2014, Defendants filed a reply. (Doc. 29.) Defendants‟ motion to 28 dismiss is now before the court. 1 1 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS 2 Plaintiff is presently an inmate in the custody of the California Department of 3 Corrections and Rehabilitation, incarcerated at the California Substance Abuse Treatment 4 Facility and State Prison in Corcoran, California. 5 allegedly occurred at Pleasant Valley State Prison (PVSP) in Coalinga, California, when 6 Plaintiff was incarcerated there. Plaintiff‟s factual allegations follow. The events at issue in the Complaint 7 A. 8 Prior to Plaintiff‟s incarceration, he suffered injuries as a result of being shot several 9 times by police. Plaintiff was shot in the chest, kidney, spleen, colon and thoracic spine. 10 Plaintiff underwent two separate surgeries to address the damage. Plaintiff alleges that since 11 his incarceration, he has needed constant treatment and pain management. Plaintiff alleges that 12 his treatment “took a significant turn for the worst” while he was at PVSP. Complaint, Doc. 1 13 at 8 ¶8. Allegations 14 Plaintiff alleges that he has been prescribed Morphine Sulphate “for several years,” and 15 that, “on more than one occasion, Pleasant Valley prison officials have allowed Plaintiff‟s 16 medication(s) to expire due to negligence.” Id. ¶14. Plaintiff had been receiving a dose of 17 Morphine Sulphate of 30 milligrams twice daily and 1200 milligrams of Gabapentin three 18 times daily to relieve pain caused by the gunshot injuries. Plaintiff had been prescribed these 19 pain medications at these doses “for several years.” Id. ¶13. At some point, Plaintiff‟s dosages 20 were reduced to 15 milligrams of Morphine Sulphate twice daily and 300 milligrams of 21 Gabapentin twice daily. 22 Plaintiff alleges that Morphine Sulphate is “highly addictive” and that when it is 23 discontinued “cold turkey,” he suffers severe delirium tremens (sic) (DTs) as a result of 24 withdrawal. Id. ¶¶15, 16. Plaintiff alleges that each time his medication was discontinued 25 because he had not seen his primary care provider “due to prison overcrowding,” he suffered 26 severe DTs, which caused constant and severe pain. Id. ¶17. Plaintiff alleges that on several 27 occasions, this condition lasted “for days,” and was ignored by medical staff. Id. at 8-9 ¶18. 28 /// 2 1 Plaintiff “spent several weeks total unable to sleep, eat, walk, or even to use the bathroom due 2 to pain caused by these injuries.” Id. at 9 ¶21. 3 Plaintiff also alleges that he met with each of the Defendants, and that none of them 4 read his medical file or took the time to learn about his injuries. Id. at 8 ¶11. Plaintiff alleges 5 that between the dates of January 2008 and November 2010, he informed Dr. Igbinosa of his 6 severe pain and “lack of a continued medical regimen and the fact that he hadn‟t been seeing 7 his doctors as scheduled.” Id. at 9 ¶26. Dr. Igbinosa advised Plaintiff to file a grievance 8 regarding the issue. Plaintiff alleges that his medication was discontinued after several of these 9 meetings, “due to Dr. Igbinosa‟s failure to correct the problem raised.” Id. ¶29. When Plaintiff 10 sought an explanation from defendant Green as to why his medication had been reduced, he 11 was told that defendant Green was under orders by his supervisor to “cut down everyone‟s 12 meds,” and “reduce the narcotics on this facility.” Id. at 10 ¶39. Defendant Green informed 13 Plaintiff that he was “just a casualty of my orders.” Id. ¶¶36, 39. Plaintiff was also told by 14 defendant Green that “[a] little pain might be good for you,” and “[y]ou‟re not in that much 15 pain with just one bullet in your spine and a few fragments floating around in your back.” Id. 16 ¶39. When Plaintiff asked defendant Dr. Duenas why his medication was reduced, he was told 17 that the medication was being reduced because “Plaintiff‟s internal system was not breaking 18 down the medications and that [plaintiff]‟s kidney was showing damage,” but Plaintiff alleges 19 that neither defendant Green or Duenas could produce any diagnostic evidence. Id. at 11 ¶¶ 43- 20 47. Defendant Wilson told Plaintiff that he had no doubt that Plaintiff was in pain, but “I have 21 to protect my job and I can only do that by following orders.” Id. at 12 ¶56. 22 Plaintiff alleges that instead of offering relief, Defendants either reduced his 23 medications or allowed them to expire, causing him to suffer withdrawal symptoms. Plaintiff 24 has alleged facts indicating that he suffers from severe pain as a result of the decisions made by 25 Defendants. Plaintiff requests monetary damages and injunctive relief. 26 B. 27 Plaintiff claims that Defendants failed to provide him with adequate medical care, in 28 violation of the Eighth Amendment. Under the Eighth Amendment, the government has an Claims 3 1 obligation to provide medical care to those who are incarcerated. See Lopez v. Smith, 203 F.3d 2 1122, 1131 (9th Cir. 2000). “In order to violate the Eighth Amendment proscription against 3 cruel and unusual punishment, there must be a „deliberate indifference to serious medical needs 4 of prisoners.‟” Id. (quoting Estelle v. Gamble, 429 U.S. 97. 104 (1976)). Lopez takes a two- 5 prong approach to evaluating whether medical care, or lack thereof, rises to the level of 6 “deliberate indifference.” First, a court must examine whether the plaintiff‟s medical needs 7 were serious. 8 interfered with [the plaintiff‟s] medical treatment.” Id. at 1132. 9 III. See Id. Second, a court must determine whether “officials intentionally RULE 12(b)(6) MOTION TO DISMISS 10 A. 11 In considering a motion to dismiss, the court must accept all allegations of material fact 12 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 13 1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 14 L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable 15 to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), 16 overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 17 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or 18 doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 19 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). In addition, pro se pleadings are held to a less 20 stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 21 S.Ct. 594, 30 L.Ed.2d 652 (1972). Legal Standard 22 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 23 complaint. Rule 8(a)(2) requires only “a short and plain statement of the claim showing that 24 the pleader is entitled to relief” in order to “give the defendant fair notice of what the ... claim is 25 and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 26 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 27 L.Ed.2d 80 (1957)). “The issue is not whether a plaintiff will ultimately prevail but whether 28 /// 4 1 the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236, 94 2 S.Ct. 1683, 40 L.Ed.2d 90 (1974). 3 The first step in testing the sufficiency of the complaint is to identify any conclusory 4 allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009). AThreadbare 5 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 6 suffice.@ Id. at 1949 (citing Twombly, 550 U.S. at 555. A[A] plaintiff=s obligation to provide 7 the grounds of his entitlement to relief requires more than labels and conclusions, and a 8 formulaic recitation of the elements of a cause of action will not do.@ Twombly, 550 U.S. at 9 555 (citations and quotation marks omitted). 10 After assuming the veracity of all well-pleaded factual allegations, the second step is for 11 the court to determine whether the complaint pleads Aa claim to relief that is plausible on its 12 face.@ Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 13 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when 14 the plaintiff Apleads factual content that allows the court to draw the reasonable inference that 15 the defendant is liable for the misconduct alleged.@ Id. at 678 (citing Twombly, 550 U.S. at 16 556). The standard for plausibility is not akin to a Aprobability requirement,@ but it requires 17 Amore than a sheer possibility that a defendant has acted unlawfully.@ Id. 18 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 19 outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 20 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). 21 B. 22 Defendants move to dismiss some of Plaintiff‟s claims. Defendants argue that Plaintiff 23 has abandoned his claims about delayed renewal of his pain medications and about certain tests 24 that were not re-ordered, that Plaintiff fails to state a reduction-in-pain-medication claim 25 against defendant Wilson, that Plaintiff‟s claim for injunctive relief should be dismissed, and 26 that all monetary claims against Defendants in their official capacities should be dismissed. 27 Defendants seek to proceed only on Plaintiff‟s Eighth Amendment medical care claim relating 28 /// Defendants’ Motion 5 1 to reduction in Plaintiff‟s pain medications, against defendants Green and Duenas in their 2 individual capacities. 3 1. Abandoned Claims 4 Defendants argue that Plaintiff abandoned his claims concerning delayed-renewal-of- 5 medication and the MRI/CT Scan Claims. Defendants assert that the court‟s screening order of 6 November 13, 2013, specified claims against defendants Green, Duenas, and Wilson regarding 7 the reduction in pain medication, but did not mention allegations relating to delayed renewal of 8 medications or MRI/CT scan as being cognizable. (Doc. 10 at 3:23-4:22.) Plaintiff indicated 9 his willingness to proceed “[p]ursuant to the Court‟s order of November 13, 2013” against 10 “only Defendants Green, Wilson, and Duenas on his Eighth Amendment claim.” (Doc. 11 at 11 1.) The Magistrate Judge then issued findings and recommendations that the action proceed 12 only against defendants Dr. Duenas, P.A. Green, and P.A. Wilson, on Plaintiff‟s Eighth 13 Amendment inadequate medical care claims, and that “all remaining claims and defendants be 14 dismissed,” and Plaintiff was given thirty days to object. (Doc. 12.) Plaintiff did not object, 15 and the District Judge adopted the recommendation. (Doc. 13.) Based on this evidence, 16 Defendants argue that Plaintiff voluntarily agreed that the only claim he was pursuing was the 17 reduction-in-pain-medications claim against defendants Green, Wilson, and Duenas, and thus 18 abandoned his delayed-renewal-of-medications and MRI/CT scan claims. 19 2. Failure to State a Claim 20 Defendants argue that if Plaintiff did not voluntarily dismiss his delayed-renewal-of- 21 medications claim and MRI/CT claim, these claims should be dismissed for failure to state a 22 claim. 23 a. Delayed-Renewal-of-Medications Claim 24 Defendants argue that the delayed-renewal-of-medication claim is virtually identical 25 against all Defendants, except that Plaintiff had additional allegations against Dr. Igbinosa. 26 Because the court found that the allegations against Dr. Igbinosa were not cognizable, 27 Defendants conclude that those allegations would not be cognizable against the other 28 Defendants either. 6 1 Defendants also argue that Plaintiff blamed the problem on negligence, which does not 2 rise to the level of a constitutional violation. Plaintiff claims that “Pleasant Valley State Prison 3 Officials” negligently allowed his pain medication prescriptions to expire. Complaint ¶¶14, 17. 4 Defendants also argue that Plaintiff does not blame the problem on the negligence of 5 defendants Green, Wilson, or Duenas, and instead claims that “Pleasant Valley State Prison 6 Officials” were negligent in allowing prison overcrowding to result in unavailability of medical 7 staff. Id. ¶¶ 14, 17. Thus, Defendants argue that Plaintiff did not allege personal participation 8 by the Defendants, which is required for section 1983 liability. 9 b. MRI/CT Scan Claim 10 With respect to Plaintiff‟s MRI/CT scan claim, Defendants argue that Plaintiff does not 11 allege any serious medical need for these procedures. Plaintiff claims that the procedures were 12 to determine the existing damage and possibly any movement in the placement of the bullets 13 and fragments, (Complaint ¶49), but there is no indication that the existing damage was not 14 known or any indication that the bullets or fragments had moved. Defendants argue that this 15 claim should be dismissed with prejudice without leave to amend because Plaintiff has already 16 admitted that these procedures did not relate to his pain medication or any then-current medical 17 condition he was experiencing. 18 3. Claim Against P.A. Wilson 19 Defendants argue that defendant Wilson should be dismissed from the reduction-in- 20 pain-medication claim because according to Plaintiff‟s allegations, reinstating Plaintiff‟s pain 21 medication to prior levels was beyond Wilson‟s control. Plaintiff alleges that Wilson would 22 not reinstate the medication because he was under orders from persons above him, that it was 23 not his call, that it was above his pay grade, and that the problem was due to bureaucracy of the 24 administration. (Complaint ¶¶53-58.) Plaintiff alleges that defendant Wilson told Plaintiff that 25 he had no doubt Plaintiff was in pain and that Plaintiff‟s treatment was inadequate, but that he 26 was unable, as opposed to unwilling, to act. (Id.) Defendants argue that Plaintiff‟s admission 27 that he filed several grievances to the higher ups, to no avail, supports Plaintiff‟s allegations 28 that Wilson could not increase Plaintiff‟s dosage. (Complaint ¶61.) Defendants argue that this 7 1 claim should be dismissed without leave to amend because Plaintiff admits that he appealed to 2 those above Wilson, and was denied. 3 4. Request for Injunctive Relief 4 Defendants argue that Plaintiff‟s request for injunctive relief, seeking future medical 5 treatment by an outside pain management specialist, should be denied because persons who 6 could order such relief are not before the court. Defendants argue that the court does not have 7 jurisdiction over any official who could appropriately respond to an order granting the relief 8 Plaintiff seeks, especially since Plaintiff is no longer at PVSP. Further, Defendants argue that 9 Plaintiff‟s request overreaches because he does not show a threat of immediate irreparable 10 harm, the relief is not narrowly drawn, and the courts do not have the power to manage prisons 11 or second-guess prison administrators. 12 5. Official Capacity 13 Defendants argue that under the Eleventh Amendment, Defendants cannot be sued for 14 damages in their official capacities. Plaintiff sues Defendants in both their individual and 15 official capacities. (Compl. ¶¶71, 75, 79, 83.) Defendants request that upon dismissal of 16 Plaintiff‟s request for injunctive relief (which leaves only claims for damages), Defendants be 17 dismissed in their official capacities. Plaintiff’s Opposition 18 C. 19 Plaintiff alleges that as a result of being shot by police in 1997, losing his kidney and 20 spleen, and still having a bullet in his thoracic spine, he suffered pain that was “beyond 21 unbearable . . . [and] became so severe that [he] contemplated suicide.” (Oppn, Doc. 28 at 22 1:17-19, 2:6-9.) Plaintiff alleges that after P.A. Wilson was told of Plaintiff‟s pain and inability 23 to sleep, eat, or perform normal daily functions, Wilson failed to increase his pain medication 24 to prior levels. Wilson failed to peruse Plaintiff‟s medical file to ascertain specific facts 25 pertaining to the magnitude of Plaintiff‟s pain, and Wilson failed to contact an actual doctor 26 with the authority to deal with the issue. Plaintiff also alleges that Dr. Duenas and P.A. Green 27 incorrectly told Plaintiff that an MRI would move the bullet in his back, having full knowledge 28 that bullets are lead and have no magnetic field. Plaintiff alleges that he notified Defendants of 8 1 his past prescription expiration problems, but the problems continued. Plaintiff alleges that the 2 medical staff refused to do their jobs. 3 IV. DISCUSSION 4 Under the Prison Litigation Reform Act (APLRA@) the court has a statutory duty to 5 screen complaints in cases such as this and dismiss any claims that fail to state a claim upon 6 which relief may be granted. 7 requirements of the PLRA, the court is disinclined to view with favor a subsequent motion 8 seeking dismissal for failure to state a claim. On November 13, 2013, this court issued an order 9 indicating that it had screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A and found 10 that it stated cognizable claims against defendants Duenas, Green, and Wilson for inadequate 11 medical care in violation of the Eighth Amendment. (Doc. 10.) While the order finding 12 cognizable claims did not include a full analysis,1 the court conducted the same examination as 13 it does in all screening orders. In other words, the court's conclusion was based upon the same 14 legal standards as this 12(b)(6) motion. 28 U.S.C. ' 1915(e)(2); 28 U.S.C. ' 1915A. Given the 15 In the initial screening, the court is required only to determine whether the Plaintiff 16 should be allowed the opportunity to develop a factual record of the conditions of his 17 confinement. Marion v. Columbia Correction Inst., 559 F.3d 693, 694 (7th Cir. 2009). There 18 is no heightened pleading standard in § 1983 actions; rather, the general and less stringent 19 requirements of Federal Rule of Civil Procedure 8 apply. See Leatherman v. Tarrant County 20 Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 21 517 (1993). Rule 8(a)(2) requires that a complaint include only “a short and plain statement of 22 the claim showing that the pleader is entitled to relief.” Id. at 163. As the Ninth Circuit has 23 clarified, courts “continue to construe pro se filings liberally when evaluating them under Iqbal. 24 “While the [Iqbal] standard is higher, our „obligation‟ remains, „where the petitioner is pro se, 25 particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner 26 27 28 1 Generally, the court provides a fully reasoned analysis only when it must explain why the complaint does not state at least one claim. In cases where the complaint states only cognizable claims against all named defendants, the court will issue a shorter screening order notifying plaintiff that his complaint states a claim and that he must submit service documents. 9 1 the benefit of any doubt.‟” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. 2 Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). 3 Here, the court found that “[l]iberally construed,” (Screening Order, Doc. 10 at 3:23), 4 Plaintiff stated an Eighth Amendment medical claim against Defendants, which requires a 5 showing by Plaintiff of (1) A>a serious medical need= by demonstrating that >failure to treat a 6 prisoner=s condition could result in further significant injury or the unnecessary and wanton 7 infliction of pain,=@ and (2) Athe defendant=s response to the need was deliberately indifferent,@ 8 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff‟s allegations that he suffered 9 constant and severe pain as a result of trauma to his abdomen and a bullet lodged in his spine 10 are sufficient to demonstrate a serious medical need. Plaintiff also alleges that he met with 11 each of the Defendants, and that none of them read his medical file or took the time to learn 12 about his injuries. Complaint ¶11. He was told by defendant Green that “[a] little pain might 13 be good for you,” and “[y]ou‟re not in that much pain with just one bullet in your spine and a 14 few fragments floating around in your back.” Id. ¶39. Defendant Dr. Duenas told Plaintiff that 15 his medication was being reduced because his kidney was showing damage, but Plaintiff 16 alleges that neither defendant Green or defendant Duenas could produce any diagnostic 17 evidence. Id. ¶¶ 43-47. Plaintiff alleges that instead of offering relief, Defendants either 18 reduced his medications or allowed them to expire, causing him to suffer withdrawal 19 symptoms. Defendant Wilson told Plaintiff that he had no doubt that Plaintiff was in pain, but 20 “I have to protect my job and I can only do that by following orders.” (Id. ¶56.) These 21 allegations are sufficient at the pleading stage to show deliberate indifference to Plaintiff‟s 22 medical need. Therefore, the court found that “Plaintiff‟s complaint states a claim under the 23 Eighth Amendment against Defendants Green, Wilson and Duenas for deliberate indifference 24 to his serious medical need.” (Doc. 10 at 4:13-14.) 25 Defendants‟ arguments that the court‟s screening order only found certain parts of 26 Plaintiff‟s medical claim cognizable, or that Plaintiff voluntarily abandoned portions of his 27 claim by failing to file objections to the court‟s findings and recommendations, are 28 unpersuasive. The court did not separately address a reduction-in-medication claim, a failure10 1 to-reorder-tests claim, and a delayed-renewal-of-medications claim in the screening order, 2 except to re-state Plaintiff‟s allegations. 3 remaining claims and defendants” from this action did not specify the dismissal of any part of 4 Plaintiff‟s medical claim against defendants Duenas, Green and Wilson. 5 Plaintiff notified the court of his willingness to proceed with the medical claims against 6 Defendants Duenas, Green, and Wilson, and the fact that he did not object to the court‟s 7 dismissal of “all remaining claims and defendants” did not cause him to unwittingly abandon 8 parts of his medical claims. The court‟s subsequent order dismissing “all (Docs. 12, 13.) 9 Defendants‟ arguments regarding the extent of Defendants‟ control over the medical 10 process, the reasons Plaintiff‟s medications lapsed or were reduced, and whether Plaintiff had 11 medical needs for additional tests are issues more properly raised at the summary judgment 12 stage of the case, not the screening stage. Moreover, the court fails to see the relevance at this 13 stage of the proceedings whether Plaintiff‟s grievances addressing his medical problems were 14 granted or denied. 15 Defendants‟ argument that Plaintiff cannot succeed on his claim for injunctive relief 16 because he has been moved from one prison to another is also unpersuasive. Plaintiff requests 17 injunctive relief via an order requiring him to be seen by an outside pain management 18 specialist. Plaintiff‟s transfer away from PVSP does not foreclose the possibility that he could 19 be granted such relief. Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001). Moreover, at the 20 screening stage, Plaintiff is not required to show a threat of immediate irreparable harm, or that 21 the relief he requests is narrowly drawn. Therefore, the court shall not dismiss Plaintiff‟s claim 22 for injunctive relief at this early stage. 23 The court concurs that Plaintiff cannot succeed under § 1983 with a claim for damages 24 against Defendants in their official capacities. As Defendants have argued, A[t]he Eleventh 25 Amendment bars suits for money damages in federal court against a state, its agencies, and 26 state officials in their official capacities.@ Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 27 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits 28 seeking damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 11 1 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). APersonal-capacity suits . . . seek 2 to impose individual liability upon a government officer for actions taken under color of state 3 law.@ Hafer, 502 U.S. at 25; Suever v. Connell, 579 F.3d 1047, 1060 (9th Cir. 2009). Where a 4 plaintiff is seeking damages against a state official and the complaint is silent as to capacity, a 5 personal capacity suit is presumed given the bar against an official capacity suit. Shoshone- 6 Bannock Tribes v. Fish & Game Comm=n, 42 F.3d 1278, 1284 (9th Cir. 1994); Price v. Akaka, 7 928 F.2d 824, 828 (9th Cir. 1991). Accordingly, Defendants‟ motion to dismiss Plaintiff‟s 8 claims for damages against Defendants in their official capacities shall be granted. 9 V. CONCLUSION AND RECOMMENDATIONS 10 With respect to Defendants‟ Rule 12(b)(6) motion to dismiss for failure to state a claim, 11 the court finds that Plaintiff states cognizable claims against defendants Duenas, Green, and 12 Wilson, for failure to provide adequate medical care, in violation of the Eighth Amendment, 13 but that Plaintiff fails to state any other claims for relief. The court also finds that Plaintiff fails 14 to state a claim for damages against any of the Defendants in their official capacities. 15 Therefore, Defendants‟ motion to dismiss should be granted in part and denied in part. 16 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 17 1. 18 19 in part and denied in part; 2. 20 21 3. 26 Defendants‟ motion to dismiss certain medical claims from Plaintiff‟s Complaint, based on Plaintiff‟s abandonment of the claims, be DENIED; 4. Defendants‟ motion to dismiss certain medical claims from the Complaint, based on Plaintiff‟s failure to state a claim, be DENIED; and 24 25 Defendants‟ motion to dismiss Plaintiff‟s claims for damages against Defendants in their official capacities be GRANTED; 22 23 Defendants‟ Rule 12(b)(6) motion to dismiss, filed on July 28, 2014, be granted 5. Defendants‟ motion to dismiss Plaintiff‟s claim for injunctive relief be DENIED. 27 These Findings and Recommendations will be submitted to the United States District 28 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. ' 636 (b)(1). 12 1 Within thirty (30) days after being served with a copy of these Findings and 2 Recommendations, any party may file written objections with the court and serve a copy on all 3 parties. Such a document should be captioned AObjections to Magistrate Judge=s Findings and 4 Recommendations.@ Any reply to the objections shall be served and filed within ten (10) days 5 after service of the objections. The parties are advised that failure to file objections within the 6 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 7 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 10 11 IT IS SO ORDERED. Dated: February 10, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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