United States District Court, D. Oregon
ROTISH VIKASH SINGH Two Rivers Correctional Institution Umatilla, OR Plaintiff, Pro Se
ELLEN ROSENBLUM Attorney General SHANNON M. VINCENT Assistant Attorney General Salem, OR Attorneys for Defendants B. Belleque, D. Brown, K. Fanger, Steve Franke, Michael Gower, Linda Gruenwald, O. Hansen, K. Jackson, S. Johnston, Greg Lytle, B. Martinez, M. Mathisen, M.E. Perkins, V. Reynolds, S. Shelton, J. Taylor, and D. Wettlaufer (State Defendants)
STEVEN A. KRAEMER LESLIE ANNE EDENHOFER MARK C. SHERMAN Hart Wagner, LLP Portland, OR ROBERT C. DOUGHERTY Portland, OR Attorneys for Defendant Tom Clark.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on State Defendants' Rule 12(b)(6) Motion (#111-1) to Dismiss and Rule 12(c) Motion (#111-2) for Judgment on the Pleadings. For the reasons that follow, the Court GRANTS Defendants' Motions, DISMISSES without prejudice Plaintiff's claims against Defendants Wettlaufer and Belleque, and DISMISSES with prejudice Plaintiff's claims against Defendant Lytle.
On May 16, 2012, Plaintiff Rotish Vikash Singh, an inmate at Two Rivers Correctional Institution, filed a pro se Complaint pursuant to 42 U.S.C. § 1983 and alleged claims against various prison officials,  including Greg Lytle, D. Wettlaufer, and B. Belleque, for cruel and unusual punishment, deliberate indifference to a serious medical need, and retaliation.
On September 3, 2013, Plaintiff filed a Second Amended Complaint asserting the same claims against the same Defendants and including additional facts to support his claims.
On November 18, 2013, State Defendants filed a Rule 12(b)(6) Motion to Dismiss and Rule 12(c) Motion for Judgment on the Pleadings in which they seek dismissal of Plaintiff's claims against Defendants Wettlaufer, Belleque, and Lytle. The Court took State Defendants' Motions under advisement on January 22, 2014.
I. Dismissal for Failure to State a Claim Pursuant to Rule 12(b)(6)
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [ Bell Atlantic v. Twombly, 550 U.S. 554, ] 570, 127 S.Ct. 1955. 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. Id. at 556.... 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. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 557, 127 S.Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).
"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)(citation omitted). A court, however, "may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and ...