The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
WITH MODIFICATIONS AND REJECTING IN PART REPORT AND RECOMMENDATION AND DISMISSING ACTION ORDER ADOPTING IN PART [Dkt No. 21, 25*fn1 ]
This 42 U.S.C. § 1983 prisoner civil rights matter is before the court on defendants' Motion To Dismiss First Amended Complaint ("Motion") for failure to state a claim upon which relief can be granted. Dkt No. 21. Plaintiff Relaun Deadmon ("Deadmon" or "Plaintiff"), proceeding pro se, is a state prisoner challenging the constitutionality of the proceedings associated with his confinement in administrative segregation and its conditions as violations of his Fourteenth Amendment due process rights. He names as defendants eleven prison officials and correctional officers, in their official and individual capacities, only five of whom appear to have been served. The Motion is brought on behalf of those five: Villa, Aguayo-Hunt, Grannis, Baltazar, and Jimenez, Jr. (collectively "Defendants"). The court deems only the moving defendants to be parties to this action.*fn2
Magistrate Judge William McCurine, Jr. prepared a Report And Recommendation ("R&R") recommending Defendants' Motion be granted in part and denied in part, and that Deadmon be granted leave to amend all but his official capacity allegations and one conspiracy to violate civil rights claim. Dkt No. 27. Deadmon filed no Objections to the R&R.
Defendants filed Objections to a single aspect of the R&R: the recommendation the 42 U.S.C. § 1983 conspiracy claim be found to survive their FED. R. CIV. P. 12(b)(6) challenge. Deadmon filed no response to Defendants' Objections. Defendants argue no conspiracy to violate civil rights cause of action can be maintained in the absence of a viable underlying substantive civil rights violation claim, and the R&R recommends dismissal of all the Due Process claims. Dkt No. 28. However, as the R&R also recommends granting Deadmon leave to amend, this court construes the recommendation as predicated on the assumption Deadmon would file an amended pleading restating a viable Due Process violation claim that could support the conspiracy claim. Nevertheless, for the reasons discussed below, Defendants' Objections are SUSTAINED on grounds Deadmon will not be granted leave to restate a third time any of his claims. The R&R is ADOPTED IN PART, but on modified reasoning, and REJECTED IN PART.
In June 2005, prison officials charged Deadmon with conspiracy to assault peace officers while he was an inmate at Calipatria State Prison.*fn3 He was ultimately found not guilty of that charge through institutional review procedures, but he spent fifteen months in administrative segregation ("Ad Seg") in the meantime. His First Amended Complaint ("FAC") alleges Defendants, in their official and individual capacities, violated his procedural due process rights associated with the instigation, investigation, and conduct of his disciplinary proceedings by forging, falsifying, and back-dating documents, failing to disclose exculpatory evidence, and failing to investigate his claims of misconduct during his administrative appeal. He also summarily contends the deprivations associated with his Ad Seg confinement caused him "mental, emotional, and physical suffering." FAC ¶ 103.
Deadmon seeks declaratory relief, but with the import of injunctive relief,*fn4 and compensatory damages. His FAC separately identifies two causes of action: First, a violation of Due Process; and Second, infliction of mental, emotional, and physical suffering, including his fear of the potential he will be seen "in a negative light before the Board of Prison Terms, and possibly cause plaintiff to be denied for a period of five years." FAC 15:22-17:2. Defendants liberally construe the FAC to identify three due process violation claims, a "mental anguish" claim and, although not separately enumerated as a cause of action, a claim for conspiracy to violate Deadmon's due process rights by three of the five named defendants. Mot. 5:2-10. The R&R enumerates four claims discernable from the allegations in Deadmon's 17-page FAC, addressing: a "first claim" based on "an alleged violation of his rights to due process of law in how his disciplinary hearing was held," citing FAC ¶ 101; a "second claim" based on "an alleged violation of his rights to due process of law based upon the length of his confinement in Ad Seg;" a "third claim" as "an alleged violation of his rights to due process based upon the possibility that his eligibility for parole may be effected [sic]" (although this court construes that portion of the pleading instead as a speculative concern related to damages as part of his "mental anguish" allegations, appearing as it does in the statement of his second cause of action); and fourth, the second of Deadmon's two causes of action enumerated in his FAC, alleging emotional, mental, and physical suffering, citing FAC ¶¶103-104. R&R 3:3-8. The R&R additionally addresses his conspiracy allegations as a separate claim.
Deadmon's Opposition to the Motion accepts Defendants' introductory statement and the material portions of their procedural and factual background statements. Dkt No. 25, p. 3. No party filed objections to the factual or procedural summaries provided in the R&R.
1. Motions To Dismiss For Failure To State A Claim
A FED. R. CIV. P. ("Rule") 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Dismissal is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). A complaint may also be dismissed where it presents a cognizable legal theory, but fails to plead facts essential to the statement of a claim under that theory. Robertson, 749 F.2d at 534; see Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Leave to amend "shall be freely given when justice so requires." Rule 15(a); see DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (when a Rule 12(b)(6) motion is granted, leave to amend is ordinarily denied only when it is clear that the deficiencies of the complaint cannot be cured by amendment); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-24 (9th Cir. 1988) (in civil rights cases, courts must liberally construe the pleadings and resolve doubts in favor of the plaintiff, and "[a] pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment'"); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations; . . . a plaintiff's obligation to provide "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . .
The Rule 12(b)(6) issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Scheuer v. Rhoades, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court assumes the truth of all factual allegations, including all reasonable inferences to be drawn from the facts alleged, and construes them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations, nor need the court accept conclusory allegations or unreasonable inferences as true. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). In construing the pleading, courts may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss"); see also Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1997) (a plaintiff must support allegations of civil rights violations with factual allegations of overt acts or omissions with some degree of particularity).
A sufficiency of the pleading review is confined to the complaint. Schneider v. California Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). However, the court may also consider documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Branch v. Tunnell, 14 F.3d 449, 454-55 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
2. 42 U.S.C. § 1983 Actions
Deadmon seeks relief pursuant to 42 U.S.C. § 1983 ("Section 1983"), which provides, in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." Accordingly, to sustain a Section 1983 action, the allegations must show (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a constitutional right. See Balistreri, 901 F.2d at 699; West v. Atkins, 487 U.S. 42, 48 (1988).
3. Cognizable Due Process Violations
The Fourteenth Amendment provides that no state shall deprive a person of life, liberty, or property without due process of law. The procedural guarantees of due process apply only when a constitutionally-protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972) (the Fourteenth Amendment's Due Process Clause does not trigger the need for procedural protections in every instance involving the state's deprivation of an individual's liberty, but only when there is a cognizable liberty interest at stake); see Ingraham v. Wright, 430 U.S. 651, 672 (1977). Protectable liberty interests arise from the Fourteenth Amendment's Due Process Clause itself, or from state laws or regulations deemed to have created a liberty interest cognizable as a civil right. Meachum v. Fano, 427 U.S. 215, 224-27 (1976); Wolff v McDonnell, 418 U.S. 539, 557-58 (1974) (describing minimum safeguards before a state, for disciplinary reasons, seeks to withdraw sentence credits a prisoner has already acquired, raising a liberty interest); Smith v. Sumner, 994 F.2d 1401, 1405-06 (9th Cir. 1993).
A district judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Rule 72(b); see 28 U.S.C. § 636(b)(1). An objecting party may "serve and file specific objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b).
"[T]he court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1); United States v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections). The court also reviews de novo the magistrate judge's conclusions of law. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995). "If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law." Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The statutory provision does not require that the district court conduct some lesser review when no objections are filed. Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions under a de novo or any other standard when neither party objects to those findings"); but see Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007) ("determinations of law by the magistrate judge are reviewed de novo by both the district court and [the court of appeals]," so "the failure to object would not, standing alone, ordinarily constitute a waiver of the issue" on appeal) (citation omitted). Here, the court need only address the conclusions of law and decide the ultimate disposition of Defendants' Motion, as no party has filed objections to the R&R factual findings.
Defendants move to dismiss all the FAC "official capacity" allegations against them. The Eleventh Amendment bars suits for damages against a state employee acting in his official capacity as an agent of the State. Regents of the University of California v. Doe, 519 U.S 425, 429 (1997); Dittman v. California, 191 F.3d 1020, 1026 (9th Cir. 1999). In his Opposition to dismissal of his official capacity allegations, Deadmon confuses "qualified immunity" with sovereign immunity.*fn6 Opp. pp. 4-5. Officials "sued in their official capacities are not 'persons' within the meaning of § 1983," foreclosing any finding of liability in that capacity. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003), quoting Doe v. Lawrence Livermore Nat'l Lab, 131 F.3d 836, 839 (9th Cir. ...