ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on claims raised in plaintiff's first amended complaint, filed May 24, 2012. Plaintiff claims that defendants violated plaintiff's rights under the Eighth Amendment by refusing to house him on a lower bunk as provided for in a medical chrono issued by a doctor. This matter is before the court on defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).*fn1
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).
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
Plaintiff's first amended complaint contains the following allegations. In September 2008, "plaintiff was issued a medical chrono indicating by his medical doctor that due to plaintiff [sic] back condition plaintiff should be housed on a lower bunk and if an [sic] lower bunk is not accessible plaintiff should be transferred to an institution suitable for his medical condition." First Amended Complaint, filed May 24, 2012, at 4. During that month, while he was housed in an upper bunk, plaintiff informed defendants Pettigrew, Gayson, Coyle and Ortega "that he had a medical chrono from his medical doctor, that shows he is supposed to be housed on a lower bunk, due to his medical condition, and climbing up and down the upper bunk hurted [sic] his lower back." Id. After plaintiff gave these defendants the chrono, "they agreed that the medical chrono was no good and refused to put in" for a bed move for plaintiff. Id.
From September through November 20, 2008, "plaintiff was forced to climb up and down (with no latter [sic]) from the top bunk and to sleep on the top bunk." Id. On November 20, 2008, plaintiff returned to his cell to retrieve a personal item. While he was climbing up to the top bunk his back went out and he fell, injuring his lower back and left hip. Plaintiff was taken to the medical clinic and given a shot of morphine for pain. Id. at 5. The doctor also issued plaintiff a wheelchair because he "found plaintiff that plaintiff could not longer walk", and he prescribed pain medication. Id. Plaintiff was taken back to his housing unit and defendants Pettigrew, Gayson, Coyle and Nathan "continued to leave plaintiff to the upper bunk" and failed to request a housing move for plaintiff before they left work. Id. Another correctional officer moved plaintiff to a lower bunk later that day. Id. at 5-6.
A week or so later, plaintiff was rehoused in another unit in an upper bunk. Id. at 6. Plaintiff informed defendant Tayson that he could not be housed in an upper bunk because of the fall. Id. Defendant Tayson told plaintiff that there were no lower bunks available and he wouldn't be in the cell long. Id. Plaintiff observed that it made no sense to transfer him from the lower bunk he had been in. Id. Defendant Tayson told plaintiff that the prison was overcrowded, there were no lower bunks, and nothing could be done. Id.
From December 2008 through February 2009, plaintiff told defendants Brooks, Moore, Broadman, and Fisher about the medical chrono for a lower bunk and that he was forced to sleep on the floor and crawl on his knees to and from the cell. Id. He was rehoused to another upper bunk only cell, and he informed these defendants again that he was forced to sleep on the floor and crawl on his knees. Id. After plaintiff submitted his chrono to defendants Brooks, and Moore, and, separately, to defendants Broadman and Fisher, they told plaintiff he would have to sleep on the floor until a lower bunk opened up. Plaintiff experienced, inter alia, pain and suffering as a result of these events. Id. at 10.
Defendants contend that plaintiff has not stated a cognizable Eighth Amendment claim against any of them. With respect to plaintiff's claim against defendants Pettigrew, Gayson, Coyle, and Ortega, defendants contend first that plaintiff "has not sufficiently described the health of his back in November of 2008, so the Court cannot make a determination about the objective seriousness of his risk for injury immediately before his fall." Motion to Dismiss, filed August 27, 2012, at 4. Defendants next contend that none of these defendants acted with deliberate indifference toward plaintiff and that plaintiff's allegations suggest that "these Defendants truly believed that a lower bunk was not necessary." Id. With respect to plaintiff's claim against defendants Tayson, Brooks, Moore, Fisher, and Broadman, defendants contend there are no allegations which suggest that they acted with deliberate indifference toward plaintiff. They also contend that plaintiff has not alleged that their acts or omissions caused any injury to plaintiff. Finally, all defendants contend that they are entitled to qualified immunity because plaintiff has failed to state a cognizable claim against any of them, and "because reasonable correctional officials would not have believed that placing Plaintiff in an upper bunk when no lower bunks were available would violated Plaintiff's Eighth Amendment rights." Id. at 6.
Plaintiff's Eighth Amendment claim against defendants has two prongs: the presence of a serious medical need and/or a substantial risk of harm, and deliberate indifference by defendants to that need and/or risk. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). "The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects and individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a 'serious' need for medical treatment." McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). "For a claim . . . based on a failure to prevent harm," plaintiff must allege that he was "incarcerated under conditions posing a substantial risk of serious harm." Farmer, at 834. Plaintiff's allegations that a medical doctor issued a chrono for plaintiff to be housed in a lower bunk due to a back condition, and that he was instead housed on in an upper bunk, are sufficient to meet the first prong of his Eighth Amendment claim.
Moreover, defendants' contention that plaintiff is required to include allegations about the health of his back in November 2008, just prior to his fall, is without merit. As noted above, on a motion to dismiss the court accepts the allegations of the operative complaint as true and construes those allegations in the light most favorable to the plaintiff. The court accepts as true that in September 2008 a medical chrono for a lower bunk was issued by a medical doctor for plaintiff as a result of a back condition and that plaintiff was not housed in an upper bunk between September 2008 and November 2008. Plaintiff also alleges that he still had the chrono on November 20, 2008, the day that he fell. See First Amended Complaint, at 5. The court also accepts that allegation as true. Taken together, those allegations are sufficient to support the first prong of plaintiff's Eighth Amendment claim: that he had a serious medical need and faced a substantial risk of harm from being housed in an upper bunk at all relevant times in this action, including the time proximate to the fall.
Defendants contention that plaintiff's allegations suggest that defendants were not deliberately indifferent but "truly believed" plaintiff did not need a lower bunk ignores the principles that govern construction of plaintiff's first amended complaint and is simply without merit. Viewed in the light most favorable to plaintiff, the allegation is that all four defendants agreed, without foundation, that plaintiff's medical chrono was "no good", and each of them refused to request a bed move for plaintiff. See First Amended Complaint, at 4. Deliberate indifference may be shown by "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin, at 1059.) "Indifference 'may appear when prison officials deny, delay or intentionally interfere with medical treatment...'" Jett, id. (quoting McGuckin, at 1059 (in turn quoting Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988)). Plaintiff's allegations are sufficient to support the second prong of his Eighth Amendment claim against defendants Pettigrew, Gayson, Coyle, and Ortega.
With respect to defendants Tayson, Brooks, Moore, Fisher, and Broadman, plaintiff's allegations that they failed for three months to house him in a lower bunk despite knowledge of plaintiff's fall and knowledge of the chrono, that plaintiff was forced to sleep on the floor and crawl around his cell, and that this caused him pain and suffering are ...