The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss filed July 15, 2008, on behalf of defendants Voong, Carroll, Olivio and Foster. After two extensions of time, plaintiff filed his opposition on February 11, 2009. On February 18, 2009, defendants Gant, Solorzano, Garrett and Ross filed a motion to join the motion to dismiss.
For the following reasons, the court orders that defendants' motion is granted in part and recommends that it be denied in part.
LEGAL STANDARD FOR MOTION TO DISMISS
In order to survive dismissal for failure to state a claim pursuant to 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
This action is proceeding on the original complaint filed December 3, 2007. Plaintiff alleges that while housed at the California Medical Facility, he was moved to a top bunk despite having a medical chrono for a lower bunk. He later fell from the top bunk and hurt himself. Plaintiff alleges that defendant Foster failed to determine if plaintiff was medically cleared before moving plaintiff to the top bunk. Plaintiff alleges that defendant Carroll called him a nigger and told plaintiff that if he filed an administrative grievance about having been placed in a top bunk, he would make sure that plaintiff always was assigned to a top bunk.
Plaintiff alleges that while housed at California State Prison-L.A. County, defendants Gant and Solorzano used verbal threats to force him to a top bunk. Plaintiff told defendant Garrett that being on the top bunk made him afraid for his safety. Defendant Garrett ignored his safety concerns.
Plaintiff alleges that he told defendant Ross that he was being moved to a top bunk for a third time. Plaintiff alleges that defendant Ross threatened to beat ...