ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is presently housed at Salinas Valley State Prison in Soledad, California. This matter is before the court on defendants' motion to dismiss. Defendants contend that this action is barred by the applicable statute of limitations and that plaintiff has failed to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff opposes the motion.
Plaintiff, a protective custody inmate, alleges that on "Tuesday 2, 2007," while he was housed at Sacramento County Jail, defendant Deputy Jacoby, the control booth officer, opened plaintiff's cell door and allowed an inmate named Caudle into the cell. Plaintiff claims Caudle beat him with a broken toilet plunger handle, causing numerous injuries. Plaintiff alleges that other inmates heard his cries for help and pressed emergency buttons. Approximately ten to fifteen minutes later, Deputy Jacoby arrived at the cell. Fifteen to twenty minutes after Deputy Jacoby's arrival, medical aid arrived. Plaintiff was transported to a hospital in Stockton, CA where he received multiple stitches. Plaintiff makes no charging allegations against any of the other named defendants.
On December 31, 2009, plaintiff filed a complaint against defendants Sheriff John McGinness, Lt. Brelji, Deputy Jacoby and Sacramento County Sheriff's Department. On July 2, 2010, defendants filed a motion to dismiss. On August 5, 2010, plaintiff filed an opposition.
STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim 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, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Although the court previously issued a screening order that expressly stated that plaintiff stated a cognizable claim against defendants, the court finds that this finding does not foreclose defendants' right to bring a motion to dismiss on the same grounds. See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007) (finding that the screening and dismissal procedure under the Prison Litigation Reform Act "is cumulative of, not a substitute for, any subsequent Rule 12(b)(6) motion that the defendant may choose to bring"). The court will consider the merits of defendants' motion to dismiss.
On March 30, 2010, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir. 2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
A. Failure to State a Claim
Defendants first seek dismissal of plaintiff's complaint for plaintiff's failure to allege sufficient facts against any of the defendants. In his opposition, plaintiff attaches his grievances filed with the Sacramento County Sheriff's Department and all responses thereto.*fn1
Plaintiff claims that Sheriff McGinness and Lt. Brelji are Deputy Jacoby's supervisors, and that the Sacramento County Sheriff's Department is "the governing body of all of the listed defendants."
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), ...