Dillingham v. N. Emerson

          ORDER DIRECTING CLERK OF COURT TO CORRECT SPELLING OF DEFENDANTS VELASCO'S AND LOFTIN'S NAMES FINDINGS AND RECOMMENDATION TO DENY DEFENDANTS' MOTION TO DISMISS (ECF NO. 54) THIRTY (30) DAY DEADLINE

         Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in this civil right action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants Velasco's, Martines's, Loftin's, Emerson's, Marsh's, Wescoat's, and Wilson's motion to dismiss, filed on August 19, 2019.^[1] (ECF No. 54.)

         I.

         INTRODUCTION

         This action is proceeding on Plaintiff's second amended complaint against Defendants Emerson, Wilson, Wescoat, Velasco, Loftin, Martines, Marsh and Doe 1, in their individual capacities, for conditions of confinement in violation of the Eighth Amendment, and against Defendant Wescoat for retaliation in violation of the First Amendment. (ECF No. 50.)

         As noted above, on August 19, 2019, Defendants Velasco, Martinez, Loftin, Emerson, Marsh, Wescoat, and Wilson filed a motion to dismiss Plaintiff's Eighth Amendment claim on the ground that they are entitled to qualified immunity. (ECF No. 54.) After two extensions of time, Plaintiff filed an opposition on November 12, 2019. (ECF No. 59.) Defendants filed a reply on November 20, 2019. (ECF No. 60.) Accordingly, Defendants' motion to dismiss is deemed submitted for decision. Local Rule 230(1).

         II.

         LEGAL STANDARD

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a Rule 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

         To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         III.

         DISCUSSION

         A. Summary of Plaintiff's Second Amended Complaint

         The events alleged in Plaintiff's second amended complaint occurred while Plaintiff was housed at California Substance ...