ORDER

TROY L. NUNLEY, District Judge.

This matter is before the Court on Defendant Dr. Fox's Motion to Dismiss (ECF No. 24) and Defendants County of Sacramento and Dr. Richard Bauer's Motion to Dismiss (ECF No. 25) (collectively "Defendants") Plaintiff Michael Shannon's ("Plaintiff") First Amended Complaint ("FAC") (ECF No. 23). For the reasons discussed below, the Motions to Dismiss are GRANTED.

I. Factual Allegations1

Before being incarcerated in September of 2011, Plaintiff stepped on a rock and injured his foot. (ECF No. 23 at 2.) Dr. Giang Son at the Veteran's Hospital in San Francisco treated Plaintiff and advised him that he should receive a "walking hard cast" that was non-weight bearing. (ECF No. 23 at 2.) During his incarceration, Plaintiff "told Dr. J. Abshire about his foot surgery" and requested that the prison doctors examine his foot. (ECF No. 23 at 2.) Plaintiff also gave his treating doctors a letter from Dr. Son regarding the walking hard cast. (ECF No. 23 at 2.) Plaintiff asserts that medical records will show his foot was broken in several places. (ECF No. 23 at 2.)

On September 7, 2011, Dr. Bauer advised Plaintiff his foot did not need any support, gave him a pair of scissors, and instructed him to cut his cast off and walk around the room. (ECF No. 23 at 2.) Plaintiff was then transferred to Rio Cosumnes Correctional Center without foot support, where the hardware in his left foot fell apart and his foot became infected. (ECF No. 23 at 2.)

From October 19, 2011 to April 17, 2012, Plaintiff filed California Department of Corrections ("CDC") 7362 forms requesting medical care, but these requests were ignored. (ECF No. 23 at 2.) Plaintiff alleges that these forms document his "serious pains, his need for immediate medical care, and . . . the lack of attention by prison medical staff." (ECF No. 23 at 2.) Plaintiff was later transferred to the Deuel Vocational Institute in California for continued incarceration and medical care. (ECF No. 23 at 2.) Plaintiff states he now suffers a serious long term disability due to inadequate medical care while incarcerated.2 (ECF No. 23 at 2.)

II. Procedural Background

On October 8, 2012, Plaintiff filed a Governmental Claim for Damages against the City of Citrus Heights, Citrus Heights Police Department, Sacramento County, Sacramento County Sheriff's Department, and the Sacramento County Jail. (ECF No. 23 at 1.) On May 24, 2013, Plaintiff filed the original Complaint in the Superior Court of Sacramento. (ECF No. 2, Ex. A) Defendants removed the matter to federal court on September 5, 2013. (ECF No. 2.) This Court ordered the original Complaint be dismissed with leave to amend on December 13, 2013. (ECF No. 22.) Plaintiff filed the FAC on January 16, 2014. (ECF No. 23.)

The Court construes the FAC to assert: 1) various state claims under Cal. Government Code §§ 815.2 and 845.6, and Cal. Civ. Code § 3333 (ECF No. 23 at 4, 6); and 2) various claims under 42 U.S.C § 1983 for deliberate indifference to Plaintiff's serious medical needs (ECF No. 23 at 5-8).

III. Standard of Review: Motion to Dismiss

Federal Rule of Civil Procedure 8(a) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." On a motion to dismiss, the factual allegations of the complaint are assumed to be true. Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the well-pleaded allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). The plaintiff need not allege "`specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2009)). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (citing Twombly, 550 U.S. at 556).

Nevertheless, a court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Additionally, it is inappropriate to assume that the plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 678. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

IV. Analysis

i. State law claims

The FAC appears to assert claims against all Defendants under Cal. Government Code §§ 815.2 and 845.6 (ECF No. 23 at 4) and Cal. Civil Code § 3333 (ECF No. 23 at 6).3 Under the California Tort Claims Act ("CTCA"), a suit for money or damages may only be brought against a public entity once a written claim has been presented to the entity and the claim has been acted upon or rejected. Cal. Gov. Code § 945.4. "Timely compliance with the claim filing requirements and rejection of the claim by the governmental agency must be pleaded in a complaint in order to state a cause of action." Dujardin v. Ventura County Gen. Hosp. 69 Cal.App.3d 350, 355 (9th Cir. 1977). If a cause of action against a public entity is barred by the claims statute, an action against the public entity's employees, based on the same injury, is also barred. Cal. Gov. Code § 950.2; see also Watson v. State of California, 21 Cal.App.4th 836, 843 (1993) ("It is well settled that a government claim must be filed with the public entity before a tort action is brought against the public entity or public employee.").

With the FAC, Plaintiff attaches a "Government Claim Form," which Plaintiff states was filed on October 8, 2012. Plaintiff presents no further information regarding the status of this claim, including whether it was rejected, whether Plaintiff received compensation, or whether the claim is still under review. Plaintiff does not allege substantial compliance with the CTCA, including compliance with any relevant CTCA statutes of limitations. Because Plaintiff does not address the status of his administrative claim, the state law claims are dismissed with leave to amend.

ii. Constitutional claims

a. Claims against the County of Sacramento4

"Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability." AE ex. rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). "Instead, plaintiffs must establish that `the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation they suffered.'" Id. (internal alteration omitted) (quoting Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)). "[A] bare allegation that government officials' conduct conformed to some unidentified government policy or custom" is insufficient to state a claim under § 1983 against a municipality; instead, plaintiffs' complaint must include "factual allegations that . . . plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id. at 637 (internal quotation marks omitted) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).

Plaintiff states he has records of "approximately 50 separate pages of Request [sic] for Health Care Services" that he submitted while incarcerated. (ECF No. 23 at 2.) Plaintiff states these requests document his serious pains, his need for immediate medical care, and confirm the lack of medical attention provided to him by prison medical staff. (ECF No. 23 at 2.) Plaintiff appears to argue that these requests constitute sufficient allegations of a "policy, custom, or practice" on the part of Sacramento County to fail to address serious medical needs. (ECF No. 23 at 2.) However, Plaintiff does not attach these requests or portions thereof to his pleadings. Nor does Plaintiff detail these requests. Without more, these allegations are insufficient to state a claim that Plaintiff's injuries resulted from a policy, custom, or practice on the part of Sacramento County. Therefore, to the extent the FAC brings § 1983 claims against the County of Sacramento, these claims are dismissed with leave to amend.

b. Remaining claims against Dr. Fox and Dr. Bauer

1. Individual vs. official capacity

The FAC does not state whether Plaintiff brings suit against Defendants Dr. Bauer and Dr. Fox in their individual or official capacities. The Court construes the FAC as bringing suit against these Defendants in their individual capacities since Plaintiff seeks damages under 42 U.S.C. § 1983. See Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988) ("damage actions brought under 42 U.S.C. § 1983 are generally viewed as suits against the individual"). Insofar as Plaintiff intends to bring suit against Defendants in their official capacities, such claims must be supported by the existence of a policy, custom, or practice on the part of the governmental entity. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("[I]n an official-capacity suit, the entity's policy or custom must have played a part in the violation of the federal law.") (internal quotations omitted). Simply put, Plaintiff has to allege the existence of a policy, custom, or practice if he wishes to sue the individual Defendants in their official capacities.

2. Punitive damages

Punitive damages are recoverable in a § 1983 suit where Defendant's conduct is motivated by an evil motive or intent, or where it involves reckless or callous indifference to plaintiff's federally protected rights. Smith v. Wade, 461 U.S. 30 (1983). Plaintiff alleges that Dr. Bauer advised him his foot did not need any support, gave him a pair of scissors, and instructed him to cut his cast off and walk around the room. (ECF No. 23 at 2.) The FAC does not specify any conduct attributable to Dr. Fox.5 Such allegations do not constitute a plausible claim that Dr. Fox or Dr. Bauer were motivated by an evil motive or intent, or acted with reckless or callous indifference to Plaintiff's serious medical needs. Therefore, to the extent that Plaintiff seeks punitive damages against these Defendants, the claims are dismissed with leave to amend.

3. Deliberate indifference

Under § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show a "serious medical need" and that "defendant's response to the need was deliberately indifferent." Jeff v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976).6 Additionally, "a plaintiff's showing of nothing more than `a difference of medical opinion' as to the need to pursue one course of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

As discussed, Plaintiff alleges that at Sacramento County Jail, Dr. Bauer gave Plaintiff a pair of scissors and advised him to cut off his cast and walk around the room without any support. (ECF No. 23 at 7.) Plaintiff alleges Dr. Bauer advised him he needed no support for his foot. (ECF No. 23 at 7.) After Plaintiff was transferred to Rio Consumnes Correction Center, the hardware in his left foot fell apart and his foot became infected. (ECF No. 23 at 7.) Plaintiff alleges that at some point Dr. Fox denied him surgery. (ECF No. 30 at 2.) Plaintiff states that he now suffers a permanent disability. (ECF No. 23 at 2.) Plaintiff states that a doctor from the Veteran's Administration told him the physicians who treated Plaintiff while he was incarcerated were seriously negligent. (ECF No. 23 at 2.)

These allegations do not materially differ from the allegations in Plaintiff's original Complaint (ECF No. 2), which this Court dismissed because Plaintiff only "raised a difference of opinion regarding his treatment," and "[a] difference of opinion does not amount to a deliberate indifference to [his] serious medical needs." Sanchez, 891 F.2d at 242 (citing Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir. 1981)).7 Therefore Plaintiff does not meet the standard for a claim of deliberate indifference to his serious medical needs in violation of § 1983. To the extent that the FAC asserts such a claim, it is dismissed with leave to amend.

V. Conclusion