United States District Court, E.D. California
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
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.
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. (ECF No. 54.)
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.)
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).
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).
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).
Summary of Plaintiff's Second Amended Complaint
events alleged in Plaintiff's second amended complaint
occurred while Plaintiff was housed at California Substance