ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On August 17, 2009, defendant Orrick moved to dismiss this action, arguing that plaintiff's complaint fails to state a cognizable claim for relief. Plaintiff has filed an opposition and defendant has filed a reply.
Plaintiff is proceeding on his original complaint against defendant Orrick. Therein, he alleges as follows. On June 24, 2008, defendant Orrick was the active sergeant on CSP-Solano's Yard II. According to plaintiff, defendant Orrick was aware that white inmates were going to attack black inmates in the "H" Dorm because she received a note stating as much. However, defendant Orrick failed to prevent the attack, thereby violating plaintiff's rights under the Eighth Amendment. (Compl. at 5 & Attachs.) Plaintiff requests damages in this regard.
DEFENDANT'S MOTION TO DISMISS
Counsel for defendant Orrick argues that the court should dismiss this action because plaintiff's complaint fails to state a cognizable claim for relief under the Eighth Amendment. Specifically, defense counsel argues that plaintiff alleges in his complaint that defendant Orrick received a note indicating that white inmates were going to attack black inmates but does not allege that defendant Orrick failed to protect him, that he was attacked, or that he suffered any injuries as a result of an attack. (Def.'s Mot. to Dismiss at 4-6.)
Moreover, defense counsel argues that even if plaintiff had alleged that he suffered actual harm, he does not allege that defendant Orrick possessed a sufficiently culpable state of mind. At best, according to defense counsel, plaintiff's complaint is ambiguous on this point. Counsel also points out that, while on one hand, plaintiff claims that defendant Orrick intentionally endangered his life by failing to take action to prevent the attack, on the other hand, plaintiff stated to a prison official during the inmate appeals process that he did not believe defendant Orrick intentionally caused the situation. (Def.'s Mot. to Dismiss at 6.)
II. Plaintiff's Opposition
In his brief opposition to defendant's motion to dismiss, plaintiff appears to argue that he has been unable to obtain either a copy of the incident report regarding the attack at issue or a copy of his medical records. Plaintiff notes that he has, however, obtained a copy of his lock-up order, which indicates that he was moved to administrative segregation on June 28, 2008, because prison officials considered him an immediate threat to the safety of himself or others as well as a danger to institution security. (Pl.'s Opp'n to Def.'s Mot. to Dismiss at 1 & Attach.)
In reply, counsel for defendant Orrick argues that plaintiff's complaint and his opposition to the pending motion fail to allege any facts regarding a constitutional violation.
Counsel reiterates that plaintiff has not alleged that defendant Orrick failed to protect him, that plaintiff was attacked, or that plaintiff suffered any injuries as a result of an attack. Moreover, counsel argues that plaintiff's inability to obtain a copy of an incident report or his medical records is irrelevant to the inquiry as to whether his complaint states a cognizable claim for relief. (Def.'s Reply at 2-3.)
I. Legal Standards Applicable to a Motion to Dismiss Pursuant ...