The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [DOC. NO. 15]
Plaintiff Joseph Becker, a state inmate proceeding pro se and in forma pauperis, filed a Complaint [doc. no. 1] on August 8, 2007, pursuant to 42 U.S.C. § 1983. Plaintiff later submitted an additional exhibit to his Complaint, which was filed nunc pro tunc to September 11, 2007 [doc. nos. 7, 8]. Becker's Complaint alleges that on August 1, 2007, Defendant P. Cowan approved a recommendation to transfer Plaintiff from Richard J. Donovan state prison to another prison facility. (Compl. 3.) Becker further asserts that he has many inmate enemies which place him at risk of being harmed. (Id.) Knowing of this risk, however, Defendants failed to document the names of Plaintiff's known enemies in his central file, and also failed to integrate names of enemies from his former central file into his current file. (Id. at 3-3b.) Becker asserts that Defendants have violated their duties by failing to identify and locate each of Plaintiff's enemies before approving his transfer to another prison. (Id.) His Complaint seeks an injunction preventing his transfer until all of his inmate enemies are listed in his central file, including enemies listed in his central file from a prior period of incarceration. (Id. at 7.) He also requests punitive damages and costs of suit.*fn1 (Id.)
Before the Court is Defendants' Motion to Dismiss Complaint [doc. no. 15], which was filed on November 5, 2007. The Motion was accompanied by a Memorandum of Points and Authorities, the Declaration of Custodian of Records R. Cobb, and a Request for Judicial Notice with Exhibits A through C. Defendants move to dismiss the Complaint on three grounds: (1) Defendants are immune from liability for damages for actions taken in their official capacities; (2) Plaintiff fails to state a claim under the Fourteenth Amendment because his claim should be analyzed under the Eighth Amendment; and (3) Becker fails to plead facts that would entitle him to relief under the Eighth Amendment. (Defs.' Mot. to Dismiss 1.) Plaintiff's Opposition to Defendants' Motion to Dismiss Complaint [doc. no. 19] was filed nunc pro tunc to November 26, 2007.
For the reasons discussed below, Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART.
Plaintiff is currently incarcerated at the Richard J. Donovan Correctional Facility ("Donovan") in San Diego, California. (See Compl. 3.) Becker arrived at Donovan on October 12, 2006. (Defs.' Req. for Judicial Notice Supp. Mot. to Dismiss Ex. C at 1.) During his reception processing, he was concerned for his safety in the general population. (Compl. 3a.) Accordingly, Becker was placed in the Administrative Segregation Unit. (Id.) His placement in administrative segregation was reviewed several times after the initial placement, and each classification decision was to keep Plaintiff in administrative segregation due to concerns that he would be harmed in the general population because he had enemies in the facility. (Id.)
Becker alleges that Defendant Alvarez completed Plaintiff's processing when he was received at Donovan. (Id.) He contends that Alvarez failed to list his inmate enemies in his central file, although she had a legal duty to do so. (Id.) He further alleges that Defendant Alvarez recommended that Becker be transferred from Donovan to Sierra Conservation Center, but she made the recommendation without first determining whether his enemies are currently housed there. (Id.) Further, Plaintiff contends Alvarez "is fully aware" that he has a separate central file from a previous period of incarceration within the California Department of Corrections ("CDC") which lists several inmate enemies, yet the Defendant failed to integrate those inmates' names into Becker's current central file. (Id. at 3a-3b.) His former central file contains the names of confidential enemies from 1998 when he was sexually assaulted at Salinas Valley State Prison, whose names are unknown to Plaintiff. (Id. at 3b.) "[T]hose inmate aggressors could be most anywhere in the system including the intended arrival destination where Defendant Alvarez processed and approved Plaintiff's transfer to." (Id.)
Plaintiff submitted an Inmate/Parolee Appeal Form (commonly known as a "602 form") on January 10, 2007, requesting that the information about inmate enemies from his former central file be integrated into his current file. (Defs.' Req. for Judicial Notice Supp. Mot. to Dismiss Ex. A at 1.) Informal review of the appeal was bypassed, and it was forwarded directly for a response at the first formal level. (Id. at 1-2.) The 602 was granted in part at the first level. (Id. at 2.) Becker was informed that the archive file for his previous CDC number was ordered, and as soon as it was received at Donovan, the information would be merged into his current file. (Id.)
Plaintiff appealed the response, complaining that he never received an interview regarding his 602 and stating that his concerns were particularly serious because he was classified as "Sensitive Needs Yard," as were some of his enemies. (Id.) Becker was then interviewed by J. T. Stovall on April 5, 2007. (Id. Attach. Mem. of Apr. 19, 2007, at 1.) He again asserted that the classification staff had not made any efforts to update his central file with enemy information from his previous file. (Id.)
Plaintiff's appeal was partially granted at the second formal level. (Id. at 6.) As of April 19, 2007, when the appeal response was given, the prison had not yet received Becker's previous file from the archives. (Id.) He was informed that as soon as the file was received, all listed enemies would be included in his current central file. (Id.) Plaintiff appealed to the director's level of review [doc. no. 8, Ex. H]. The appeal was denied on August 7, 2007, because Becker had received an adequate response at the second level of review. (Id. at 1.)
Plaintiff's previous central file was received at Donovan and reviewed by Defendant Alvarez on September 21, 2007. (Defs.' Request for Judicial Notice Ex. B at 1.) Incidents of violence involving Becker were reviewed and listed on an "Archive File Review" form. (Id. at 1-2.)
II. LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS
A. Rule 12(b)(6) Motions to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). The plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1974 (2007). The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The question is not whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
A dismissal under Rule 12(b)(6) is generally proper only where there "is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
The Court need not accept conclusory allegations in the complaint as true; rather, it must "examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Cholla Ready Mix, 382 F.3d at 973 (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)) (stating that on Rule 12(b)(6) motion, a court "is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged"). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In addition, when resolving a motion to dismiss for failure to state a claim, the Court may not generally consider materials outside the pleadings. Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider, 151 F.3d at 1197 n.1. This precludes consideration of "new" allegations that may be raised in a plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir. 1993); 2 James Wm. Moore et al., Moore's Federal Practice § 12.34, at 12-90 (3d ed. 2007) ("The court may not . . . take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a).").
But "[w]hen a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [i]s proper . . . ." Parks Sch. of Bus., 51 F.3d at 1484 (citing Cooper v. Bell, 628 F.2d 1208, 1210 n.2 (9th Cir. 1980)). The Court may also consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Stone v. Writer's Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).
These Rule 12(b)(6) guidelines apply to Defendants' Motion to Dismiss.
B. Standards Applicable to Pro Se Litigants
Where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the Court may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. 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." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).
Nevertheless, the Court must give a pro se litigant leave to amend his complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Thus, before a pro se civil rights complaint may be dismissed, the Court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. Where amendment of a pro se litigant's ...