Gallardo

PROCEEDINGS: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT LORI DICARLO’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6).

The court, Judge Robert J. Timlin, has read and considered Warden Lori DiCarlo (“DiCarlo”)’s Motion to dismiss the First Amended Complaint (“FAC”) pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) (“Rule 12(b)(6)”); Plaintiff Frank Gallardo (“Gallardo”)’s opposition; and Di-Carlo’s reply. Based on such consideration, the court concludes as follows:

I.

BACKGROUND

On February 7, 2000, Gallardo, an inmate at the Chino State Prison, was physically assaulted by California Department of Corrections (“CDC”) correctional officers without provocation or other justification. The officers battered Gallardo with their fists and feet, which caused “grave physical injuries to his body and nervous system” and required Gallardo to be hospitalized for 31 days. Less than two weeks after Gallardo’s release from the hospital, on March 24, 2000, CDC correctional officers handcuffed Gallardo behind his back and forcefully threw him into his cell, causing injuries to his neck, back, knees, and wrists. The injuries to Gallardo’s…