The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to dismiss (Doc. 23).
I. PLAINTIFF'S ALLEGATIONS
Plaintiff names Baker as the only defendant. In summary, plaintiff claims that defendant Baker "forced me to move in a cell with inmate Latimore and afterwards be assaulted by him on 8-17-09." According to plaintiff, the day before the assault on August 17, 2009, plaintiff had been called to the program office where he was told by Baker that he would be moved to a cell with inmate Latimore. Baker refused plaintiff's request to be moved to a cell with a "friend that would be compatible. . . ." Plaintiff claims that, prior to the cell move, other inmates had warned him note to bunk with Latimore "because he was in the institution's mental health program and engaged in numerous cell fights with several of his previous cellmates."
Plaintiff asserts that, immediately after moving in with Latimore on August 16th, plaintiff "noticed that Latimore was acting very weird by talking very loud and staring at me for long period of time without saying anything." Plaintiff feared that Latimore would be unpredictable. According to plaintiff, Latimore was aggressive, telling him in a veiled threat that he had better have the lights off by 10:00 p.m. The next morning, plaintiff asked Latimore "calmly and respectfully" if he would move his feet away from plaintiff's face while he (Latimore) was on the top bunk. In response, Latimore became belligerent and kicked plaintiff in the face. Latimore then grabbed plaintiff and "bit a chunk of flesh out of my hand like a cannibal."
Regarding Baker's knowledge of the potential danger posed by Latimore, plaintiff asserts that "Defendant Baker clearly knew that inmate Latimore was a mentally ill inmate who previously assaulted his prior cellmates. . . ." According to plaintiff, defendant Baker knew prior to the assault that Latimore was enrolled in the prison's mental health program. He adds that, given Latimore's mental illness, Baker must have realized that there would be a "strong possibility" of injury to any inmate ordered to share a cell with Latimore. Plaintiff claims that defendant Baker is liable for his injuries, arguing that "[i]f plaintiff had not been forced to move in the cell with inmate Latimore by Defendant J. Baker on 8-16-09, plaintiff would never had been assaulted by inmate Latimore on 8-17-09."
Plaintiff asserts that these facts give rise to the following claims: (1) an Eighth Amendment claim based on Baker's disregard of the known risk posed by inmate Latimore; (2) a procedural due process claim based Baker's failure to obtain the consent and signatures of the affected inmates prior to a cell move; and (3) a pendent state law claim based on emotional distress.
II. STANDARD FOR MOTION TO DISMISS
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), 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." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. 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. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).
In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).
Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
In his motion to dismiss, Defendant Baker argues that plaintiff fails to state either a procedural due process claim or a pendent state ...