Mundy

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BENJAMIN MARTINEZ, No. 2:21-CV-1872-DAD-DMC-P Plaintiff, ORDER v. and L. MUNDY, FINDINGS AND RECOMMENDATIONS Defendant. 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. Pending before the Court is Defendant’s motion to dismiss, ECF No. 31. Plaintiff has filed an opposition, ECF Nos. 33 and 34. Defendants has filed a reply, ECF No. 35. Plaintiff has filed an unauthorized sur-reply, ECF No. 36, and request for ruling, ECF No. 37. In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v.…