The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' 12
(B) (6) MOTION TO DISMISS AND DENYING DEFENDANTS' 12 (B)
(UNENUMERATED) MOTION TO DISMISS
[Doc. No. 20]
On July 25, 2005, Defendants B Koen and Dennis Kitterman
("Defendants") filed a motion to dismiss [Doc. No. 20]. Pursuant
to the Court's briefing schedule [Doc. No. 25], Plaintiff Steven
Derrick Irvin timely opposed the motion on August 18, 2005.
Defendants did not file a reply. As set forth in the Court's July
27, 2005 briefing schedule, the Court took the motion under
submission, pursuant to Local Rule 7.1 (d) (1), upon completion
of the briefing.
On May 4, 2004, Plaintiff, proceeding pro se and in forma
pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983.
Plaintiff is currently civilly detained under California's
Sexually Violent Predators Act ("SVPA") in Los Angeles County
Jail's Twin Towers Correctional Facility. In his Complaint, Plaintiff raised various claims against ten
defendants relating to his classification as a Sexually Violent
By order dated June 1, 2004, the district judge in this case
granted Plaintiff's motion to proceed in forma pauperis but
dismissed the Complaint without prejudice for failure to state a
claim pursuant to 28 U.S.C. § 1915 (e) (2) (b) (ii). Doc. No. 3.
On June 22, 2004, Plaintiff moved for reconsideration of the
court's order. Doc. No. 5. The court denied his request without
prejudice and allowed Plaintiff until October 1, 2004 to file a
first amended complaint. Doc. No. 7.
On September 30, 2004, Plaintiff filed a First Amended
Complaint ("FAC"). Doc. No. 8. By order dated January 13, 2005,
the district judge dismissed all claims in the FAC against all
Defendants without prejudice pursuant to 28 U.S.C. § 1915 (e) (2)
with the exception of Plaintiff's retaliation claim against
Defendants Kitterman, Koen, and Sanders. Doc. No. 9. The district
judge granted Plaintiff forty-five days to either (1) file a
second amended complaint curing the deficiencies in the FAC or
(2) request that the court direct the United States Marshal to
serve a copy of the FAC, as limited by the order. Id. In a
request dated February 10, 2005, Plaintiff opted to proceed with
the retaliation claim against Defendants Kitterman, Koen, and
Sanders, as set forth in his FAC. Doc. No. 13. Defendants
Kitterman and Koen waived service. Doc. Nos. 17, 19. To date, the
Marshal has been unable to effect service on Defendant Sanders.
See Doc. Nos. 18, 27 (notices regarding unsuccessful attempts
to service Defendant Sanders).
On July 25, 2005, Defendants Kitterman and Koen jointly filed a
motion to dismiss the FAC pursuant to Rule 12 (b) of the Federal
Rule of Civil Procedure. Specifically, Defendants moved to
dismiss the FAC as untimely pursuant to Rule 12 (b) (6) and as
unexhausted pursuant to Rule 12 (b) (unenumerated). As set forth above, Plaintiff timely
opposed the motion and the Court took the matter under
Plaintiff sets forth the following allegations in his FAC:
Plaintiff was incarcerated in Calipatria State Prison from at
least November of 1999 through February of 2000. FAC at 7, 26. He
was scheduled to be released from prison on February 17, 2000.
Id. at 7, Ex. B. While in prison, Plaintiff instituted a civil
rights suit in the United States District Court for the Eastern
District of California against various California Department of
Corrections employees (Irvin v. Khoury, No. CIV-S-92-1656 FCD
(GGH)). Id. at 7. During the course of that litigation,
Plaintiff refused to sign a settlement agreement. Id.
On November 23, 1999, R. Delgado, a Correctional Counselor I,
reviewed Plaintiff's central file to determine whether Plaintiff
met the criteria to be designated a sexually violent predator
("SVP") as defined in California Welfare and Institutions Code §
6600 et seq. Id. at 7. Allegedly in retaliation for
Plaintiff's refusal to sign the settlement agreement in Irvin v.
Khoury, Defendant B. Koen, a Correctional Counselor II, referred
Plaintiff to the Board of Prison Terms as a potential SVP on
December 14, 1999. Id. at 7, Ex. B. On or before February 17,
2000, Defendant Kitterman, the Calipatria State Prison Litigation
Coordinator, informed Plaintiff that the SVP proceedings would be
dropped and Plaintiff would be released from custody if Plaintiff
signed the settlement agreement. Id. at 9.
Plaintiff refused to sign the settlement agreement, and SVP
proceedings were initiated. Id. at 7-8. As a result, the
Department of Corrections did not parole Plaintiff on February
17, 2000. Rather, Defendant Sanders placed an allegedly
"unauthorized 72 hour hold" on Plaintiff pursuant to Title 15 of the California Code of
Regulations, Section 2600.1, even though Sanders knew that
California Welfare & Institutions Code § 6600 et seq. did not
authorize the parole hold. Id. at 9, Ex. H. The hold is dated
February 14, 2000, and states "hold effective 2/17/00." Id.,
Ex. H. On February 23, 2000, Plaintiff appeared for what he
describes as a "mock" probable cause hearing. Id. at 10.
Following the SVP probable cause hearing, Defendant Kitterman and
the deputy attorney general allegedly directed the Board of
Prison Terms Commissioner to place a forty-five day hold on
Plaintiff's release and backdate the new hold to February 17,
2000. Id. at 11.
Plaintiff claims that sometime after February 17, 2000, Koen
and Sanders fabricated the chronological history in Plaintiff's
central prison file in order to hide the fact that Plaintiff had
been illegally held beyond his release date. Id. at 12-13. He
alleges that the chronological history was altered to falsely
state that probable cause was found on February 17, 2000 and to
falsely indicate that the seventy-two hour hold was placed
pursuant to California Welfare & Institutions Code § 6600 et
seq. rather than pursuant to section 2600.1 of Title 15 of the
California Code of Regulations. Id. at 13. Plaintiff was
transferred to Atascadero State Hospital on March 17, 2005, and
was then transferred again to Los Angeles County's Twin Towers
Correctional Facility on March 29, 2000. Id. at 14-15.
A Rule 12 (b) (6) motion tests the legal sufficiency of a
claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "A
court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984));
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir.
1996). In deciding such a motion, the court accepts as true all
material factual allegations of the complaint, including all
reasonable inferences to be drawn from them, and construes them
in the light most favorable to the non-moving party. Rhodes v.
Robinson, 408 F.3d 559, 563 n. 1 (9th Cir. 2005). Dismissal is
proper only where the complaint lacks a ...