The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On February 1, 2011, defendant Fleischman filed a motion to dismiss on the grounds that the second amended complaint ("SAC") fails to state a cognizable deliberate indifference claim under the Eighth Amendment, and that defendant Fleischman is entitled to qualified immunity. After receiving an extension of time, plaintiff filed an opposition on April 4, 2011. Defendant filed a reply on April 8, 2011. For the reasons set forth below, the undersigned recommends that defendant Fleischman's motion be granted. and plaintiff's claims against defendant Fleischman be dismissed.
A. Plaintiff's Second Amended Complaint
Plaintiff is proceeding on the SAC filed February 22, 2010, against sixteen defendants, alleging three separate causes of action. (Dkt. Nos 23 (SAC); 25 (Order) at 3.) Plaintiff alleges he was "tortured" during his placement in four point restraints for contraband surveillance watch ("CSW") beginning on July 23, 2006, through August 4, 2006. (SAC at 4-5.) Plaintiff was placed in an administrative segregation cell and was restrained to a bunk on his back by four-point leather restraints. (SAC at 6.) Plaintiff alleges he was subjected to the following conditions: continuous exposure to air conditioning; insufficient bedding, which consisted of one thin sheet; insufficient clothing, which was only one pair of boxer shorts until July 27, 2006, when plaintiff was provided a jumpsuit that was allegedly too small and cut off plaintiff's circulation; extremely limited exercise; constant exposure to light and noise; and limited movement during sleep. (SAC at 6-7.) Plaintiff alleges he suffered back and neck pain, delusions and anxiety, high blood pressure and high cholesterol, stress and sleep deprivation. (SAC at 7.) On August 4, 2006, plaintiff allegedly suffered an onset of paraplegia of the lower extremities requiring plaintiff's evacuation by helicopter to the John Muer Medical Center in Walnut Creek, California. (SAC at 12.)
As to defendant Fleischman, plaintiff alleges defendant Fleischman was a psychiatrist assigned to administrative segregation, along with other psychiatrists, who "ignored" plaintiff during the "inhumane torturous" 4-point restraint procedure as defendant and others "walked past the open cell door daily." (SAC at 12.) Plaintiff also contends defendant Fleischman and the other psychiatrists allegedly "failed to adhere to CCR § 1058 Restraint Gear Use protocol." (Id.) Plaintiff claims he "suffered both physical and mental anguish from being fully immobilized for 11 days." (Id.)
In paragraph 15 of the SAC, plaintiff claims that "the defendants listed in paragraph 6," one of whom was defendant Fleischman, were assigned to observe or report [those] conditions that caused excessive harm to plaintiff's health which was apparent to them; they failed to respond to the unsafe conditions of plaintiff's confinement, or intervene in the CSW [contraband surveillance watch] restraint policy/procedure that held plaintiff under inhumane conditions 7/23/06 to 8/4/06. These conditions included exposure to continual A/C, denial of adequate bedding (only thin sheet that left extremities exposed), denial of adequate clothing (boxer shorts only). (SAC at 6-7.)
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 Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
C. The Parties' Arguments
Defendant contends that plaintiff has failed to state a cognizable deliberate indifference claim under the Eighth Amendment as to defendant Fleischman. Defendant argues that plaintiff failed to allege facts demonstrating that defendant Fleischman was actually aware of any of the conditions of plaintiff's confinement or aware that the alleged conditions posed a substantial risk of harm to plaintiff's health or safety. Defendant also contends that plaintiff has failed to allege facts demonstrating that defendant Fleischman was the cause of the alleged deprivation of plaintiff's federally protected right or showing how defendant Fleischman's failure to act injured plaintiff. (Dkt. No. 74 at 7.) Defendant states that title 15, Section 1058, of the California Code of Regulations does not impose a duty of care on defendant Fleischman regarding the use of mechanical restraints because Section 1058 is applicable only to local detention facilities, not the state prison system, citing Cal. Code Regs. tit. 15 §§ 1058 and 1006.*fn1
In response, plaintiff attempts to add factual allegations as to defendant Fleischman. In the opposition to the motion to dismiss, signed under penalty of ...