The opinion of the court was delivered by: Dennis L. United States Magistrate Judge
ORDER GRANTING NUNC PRO TUNC MOTION FOR EXTENSION OF TIME TO FILE MOTION TO DISMISS (DOC. 71) ORDER DISREGARDING PLAINTIFF'S MOTION REGARDING CASE STATUS AS MOOT (DOC. 75) FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT MEYST'S MOTION TO DISMISS BE GRANTED (DOC. 73) OBJECTIONS DUE WITHIN TWENTY-ONE DAYS
Findings And Recommendation
Plaintiff Rodney Lamont Dowd ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint against Defendants S. Meyst and Defendant Arguerralde*fn1 for violation of the Eighth Amendment. On May 4, 2010, Defendant Meyst filed a motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure on the grounds that Plaintiff has failed to exhaust his administrative remedies.
Doc. 73, Def. Meyst's Mot. Dismiss. Plaintiff filed his opposition on May 26, 2010. Doc. 76, Pl.'s Opp'n.*fn2 Defendant filed his reply on June 1, 2010. Doc. 77, Reply. The matter is submitted pursuant to Local Rule 230(l). The Court will first adjudicate Defendant's motion for extension of time, filed April 6, 2010, and Plaintiff's motion regarding case status, filed May 24, 2010.
B. Motion For Extension of Time
On April 6, 2010, Defendant filed a motion for extension of time to file his motion to dismiss nunc pro tunc. Doc. 71. The Court finds good cause to grant this motion. It is HEREBY ORDERED that Defendant's motion for extension of time is granted.
C. Motion Regarding Case Status
On May 24, 2010, Plaintiff filed a motion entitled "Request Answer to Past Writ of Motion To Dismiss on C/O Defosses Jenan, McCollum, Teater, and Ward Motion To Dismiss." Plaintiff is requesting a status update regarding whether his case is still pending. As stated previously, Defendants Defosses, Jenan, McCollum, Teater, and Ward were dismissed from this action by order filed on March 22, 2010, for Plaintiff's failure to exhaust administrative remedies. As of the date of this order, Defendants Meyst and Arguerralde remain in this action. Accordingly, Plaintiff's motion is DISREGARDED.
D. Summary of Second Amended Complaint
Plaintiff alleges that on August 22, 2007, while housed at Pleasant Valley State Prison ("PVSP"), Defendant Arguerralde informed Plaintiff that he would be moved to the gymnasium. Plaintiff informed Defendant Arguerralde that he would rather be placed in administrative segregation. Plaintiff alleges that Officer Teater later arrived at Plaintiff's cell and called for more officers. Officer Defosses arrived, and Officer Teater ordered Officer Bonner, who was at the control booth tower, to open the cell door. Officers Defosses, Jenan, and Arguerralde entered Plaintiff's cell. Plaintiff alleges that Officers Defosses and Arguerralde then grabbed Plaintiff's arm, that Officer Defosses slammed Plaintiff on the ground, and that he and Ward sat on Plaintiff's back. Plaintiff alleges that Officer Jenan handled Plaintiff roughly and that both Officers Teater and Jenan were also complicit in the attack. Plaintiff alleges that Officers Ward and McCollum snatched at Plaintiff, causing Plaintiff to dislocate his shoulder. Plaintiff alleges that Defendant Meyst assisted the other correctional officers during the attack and was complicit in the assault.
II. Failure To Exhaust ...