The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Anthony Gaston ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 24, 2009, Defendant Terronez filed a motion to dismiss Plaintiff's complaint on the grounds that Plaintiff failed to state any claims upon which relief can be granted and failed to exhaust his administrative remedies prior to filing suit. (Doc. #15.) In response to Defendant's motion to dismiss, Plaintiff filed a motion for summary judgment on April 19, 2010. (Doc. #22.) The Court will deny the motion and instead construe Plaintiff's motion for summary judgment as an opposition to Defendant's motion to dismiss because at this stage in the litigation, a motion for summary judgment is not appropriate and it is apparent that Plaintiff is not well versed in the law. Defendant filed a reply to Plaintiff's motion for summary judgment/opposition on June 11, 2010. (Doc. #25.)
Both Plaintiff and Defendant have consented to jurisdiction by U.S. Magistrate Judge. (Docs. #5, 16.) For the reasons set forth below, the Court will order that Defendant's motion to dismiss be denied.
This action proceeds on Plaintiff's first amended complaint. (Doc. #8.) In Plaintiff's first amended complaint, he claims that Defendant Terronez violated Plaintiff's rights under the Eighth Amendment and under the American's with Disabilities Act ("ADA").*fn1 Plaintiff claims that he is a disabled inmate who has a "prescribed medical supply order" for diapers. (Am. Compl. Civil Rights Act 42 U.S.C. § 1983 For Damages And Request For Jury Trial 4:22-23, ECF No. 8.)*fn2
Plaintiff claims that Terronez was the medical technical assistant at Kern Valley State Prison.
On April 4, 2007, Terronez refused to provide Plaintiff with his weekly supply of diapers, covering the week from April 4 through April 11. Plaintiff claims that Terronez withheld the diapers "under the guise that Plaintiff's order expired." (Am. Compl. 6:8-9, ECF No. 8.) Plaintiff contended that his diaper prescription was permanent and did not have an expiration date. Terronez alleged responded by stating that "she didn't care" and told Plaintiff to "suck it up and fill out a medical request." (Am. Compl. 6:16-21, ECF No. 8.) Plaintiff claims that Terronez later conceded that Plaintiff's order for diapers was good through April 10, 2007.
Plaintiff complains that as a result of Terronez's failure to provide him with diapers, Plaintiff was "compelled to eat, sleep, live, and breathe in his own encrusted human feces from April 4, 2007, through April 11, 2007." (Am. Compl. 6:26-28, ECF No. 8.) Plaintiff claims he suffered physical and emotional pain as a result of being forced to live in such barbaric and inhumane conditions.
B. Defendant's Motion to Dismiss
Defendant argues that she is entitled to dismissal because Plaintiff fails to state a Section 1983 claim against her for the violation of Plaintiff's Eighth Amendment rights. Defendant also argues that Plaintiff failed to exhaust his administrative ...