The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER DENYING MOTION TO DISMISS IN PART AND DENYING MOTION TO STAY
Gerry Williams, formerly an inmate at the Salinas Valley State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. This matter is now before the court for consideration of defendants' motion to dismiss and plaintiff's motion to stay the action. For the reasons discussed below, defendants' motion to dismiss will be denied in part and granted in part. The improperly joined retaliation claim and defendant will be dismissed. The remaining claim, for deliberate indifference to Williams' safety, will not be dismissed because it is adequately pled. Plaintiff's motions to stay the action will be denied.
Williams filed a civil rights complaint in which he alleged claims for deliberate indifference to his safety and for retaliation. The court found that, liberally construed, the allegations of the complaint stated a cognizable claim against defendants Metcalfe, Thann, and Sampaolo for deliberate indifference to a risk to Williams' safety based on their actions in failing to prevent inmate Dooley from harming Williams on or about June 27-28, 2007. The court also found that, liberally construed, the allegations of the complaint stated a cognizable claim against defendant Miller for retaliation based on the adverse actions he allegedly took as payback for Williams filing a State Board of Control claim in June 2006. Defendants have moved to dismiss the complaint. First, they argue that the deliberate indifference and retaliation claims are improperly joined. Second, they argue that the complaint fails to state a claim for deliberate indifference to Williams' safety or for retaliation. Third, they argue that they are entitled to qualified immunity.
Plaintiff has moved to stay the proceedings on the ground that he was separated from his legal materials at the prison at which he is currently housed.
Federal Rule of Civil Procedure 20(a)(2) provides that all persons may be joined in one action as defendants if "any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences" and "any question of law or fact common to all defendants will arise in the action."
Defendants contend that the retaliation claim against defendant Miller is not properly joined with the deliberate indifference claim against defendants Sampaolo, Metcalfe and Thann because the two claims involve different defendants and arise from acts and omissions that happened at two different times. The court agrees. The two claims do not satisfy Rule 20(a)(2). Dismissal of the entire action is not necessary, however, as the improper joinder problem can be solved by merely dismissing the improperly joined party. See Fed. R. Civ. P. 21.
Accordingly, the court will dismiss defendant Miller and the retaliation claim, for which he is the only defendant. The dismissal will be without prejudice to plaintiff asserting that claim in a new action for which he pays a separate filing fee.
2. Deliberate Indifference Claim
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss on the ground that there is a "failure to state a claim upon which relief may be granted." A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1957)). The court "must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007), but need not accept as true allegations that are legal conclusions, ...