The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a California state prisoner seeking relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss the second amended complaint. ECF No. 55. This matter came on for hearing before the undersigned on April 17, 2013. Certified Law Students Islam Ahmad and Daniel Tu of the King Hall Civil Rights Clinic appeared on behalf of the plaintiff, with Supervising Attorney Carter White. Deputy Attorney General Diana Esquivel appeared on behalf of defendants Mesa and Turner.
This case is before the court following remand from the Ninth Circuit. See Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012). The second amended complaint, filed by counsel after remand, names three current or former Mule Creek State Prison correctional personnel as defendants: Correctional Officer Mesa, Correctional Sergeant Turner, and Correctional Lieutenant Ward. ECF No. 53.
Plaintiff, a Pakistani national with very limited proficiency in English, suffers from numerous serious medical conditions including chronic kidney disease, traumatic brain injury, a spinal disc hernia, incontinence, coronary artery disease, hypertension, high cholesterol, and a history of seizures, stroke, and epilepsy. Plaintiff's mobility is impaired, and he uses a walker and a cane. He wears a special vest identifying him as hearing-impaired. He wears special shoes for medical reasons and uses a medically-required double mattress. Because of his incontinence, plaintiff requires ready access to a toilet.
On August 17, 2006, plaintiff was issued a Disability Placement Program Verification ("DPPV"), stating that he was mobility-impaired due to a permanent disability, and subject to housing restrictions of a lower bunk, no stairs, and no triple bunk. On October 8, 2008, plaintiff was issued a chrono specifying that he was to be permanently housed in a ground floor cell, bottom bunk. On December 2, 2008, defendant Mesa, Building Officer in "B" Facility, told plaintiff that he was being moved from his cell to an emergency bunk ("E-bed") in open dormitory housing, which had forty E-beds but only two toilets and one urinal. Plaintiff told defendant Mesa that he had a medical chrono showing he was to be housed in a ground floor cell, and objected to the move on safety and medical grounds. Mesa nonetheless insisted on moving plaintiff, who then said he would rather go to administrative segregation (ad seg) than to the open dormitory. Plaintiff was taken to a holding area and informed by Sgt. Turner that he was being moved to the dormitory. When plaintiff showed defendant Turner his medical chrono, Turner stated, "I don't care" and told plaintiff he would be sent to ad seg and written up for disobeying a direct order. Plaintiff was charged with a rules violation (known as a CDC 115, after the rules violation report form) and confined in ad seg for a week. He was issued a second rules violation report for his continued refusal to move, and then was moved to a triple bunk in the open dorm setting.
In the open dormitory plaintiff did not have the medically necessary sleeping accommodations. His bed on the bottom of the triple-bunk was higher and narrower than the bunk in his cell, the vertical space between the beds was smaller, and it was open on both sides rather than one. The bunk lacked the double mattress that plaintiff required for accommodation of his disability. As a result of these deficiencies, plaintiff fell from his bed and broke his wrist. His bunk was also 75 feet away from the nearest urinal. Because this distance made it difficult for plaintiff to access the urinal, he repeatedly urinated in his clothing. As a result plaintiff suffered humiliation, anxiety and emotional distress. His access to necessary medication was also impaired in the dorm because of the misconduct of other inmates, who repeatedly moved and sometimes stole his personal property.*fn1
The second amended complaint sets forth three causes of action: (1) deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment; (2) deliberate indifference to plaintiff's right to safe and adequate shelter, i.e. failure to protect; and (3) and supervisory liability solely as to defendant Lt. Ward.*fn2 Plaintiff seeks money damages. See Second Amended Complaint (ECF No. 53).
Defendants move for dismissal under Fed. R. Civ. 12(b)(6) on the ground that plaintiff has not alleged facts sufficient to state a cognizable claim under 42 U.S.C. § 1983. Defendants also contend that they are entitled to qualified immunity. ECF No. 55 at 1, 5-10.
Legal Standard for Motion to Dismiss under Fed, R. Civ. P. 12(b)(6)
In order to survive dismissal for failure to state a claim pursuant to 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, 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 may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept ...