Gyles

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 XAVIER LUMAR J’WEIAL, No. 2: 18-cv-2766 JAM KJN P Plaintiff, v. ORDER AND FINDINGS AND

RECOMMENDATIONS

S. GYLES, et al., Defendants. 16 Introduction Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6.) Defendants argue that plaintiff’s claims should be dismissed for failing to state a claim upon which relief may be granted. Defendants also argue that they are entitled to qualified immunity. For the reasons stated herein, the undersigned recommends that defendants’ motion to dismiss be granted. Also pending is plaintiff’s motion to construe defendants’ motion to dismiss as a motion for summary judgment. (ECF No. 25.) For the reasons stated herein, this motion is denied. Legal Standard for 12(b)(6) Motion A complaint may be…