The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STRIKING DUPLICATIVE OPPOSITION (Doc. 31) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART AND DISREGARDED IN PART, AND THIS ACTION BE DISMISSED WITHOUT LEAVE TO AMEND. (Doc. 19) OBJECTIONS, IF ANY, DUE WITHIN/ THIRTY DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Alberto Campos ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. This action is proceeding against Defendants Schultz, DeVere and Miller ("Defendants") on Plaintiff's complaint, filed March 3, 2006. On October 29, 2007, Defendants filed a motion to dismiss for lack of subject matter jurisdiction, failure to state a claim, and on the grounds that defendants are entitled to qualified immunity. (Doc. 19.) Plaintiff filed an opposition on June 20, 2008,*fn1 and Defendants filed a reply on June 26, 2008. (Docs. 29, 30.)
I. Summary of Plaintiff's Complaint
This action is proceeding against defendants Miller, Schultz and DeVere for violation of the Due Process Clause. Plaintiff alleges that on October 23, 2005, his radio and headphone set were taken by officers during a shake-down. Plaintiff alleges that defendant DeVere was present and conducting the search. Plaintiff alleges that he informed defendant DeVere that officers had taken his property. Plaintiff alleges that he wrote to both defendant Schultz and defendant DeVere concerning the issue. Plaintiff contends that defendant Schultz did not respond, and that defendant DeVere provided him with a tort claim form.
Plaintiff alleges that on November 16, 2005, defendant Miller attempted to persuade plaintiff to stop his tort claim, in exchange for other used items in defendant Miller's office. Plaintiff alleges that when he refused, defendant stated "Then I will deny everything for you, and you will get nothing".
II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Defendants seek dismissal of plaintiff's claims brought against them in their official capacities, on the grounds that the court lacks subject matter jurisdiction. Defendants assert that they have not waived sovereign immunity, and therefore any claims that pertain to them in their official capacities must be dismissed.
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). As a result, "[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests on the party asserting jurisdiction." Id. (citations omitted). Rule 12(b)(1) of the Federal Rules of Civil Procedure permits dismissal for lack of subject matter jurisdiction. In a facial attack such as this, the allegations in Plaintiff's complaint are taken as true and all reasonable inferences are drawn in his favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Further, the complaint must be construed liberally because Plaintiff is proceeding pro se. Id.
In the instant case, plaintiff does not state whether his claims are against defendants in their official or personal capacities. If a complaint does not state the capacity in which the persons are sued, it is presumed that they are sued in their personal capacities. See Romano v. Bible (9th Cir. 1999) 169 F3d 1182, 1186. Further, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions [the official] takes under color of state law". See Kentucky v. Graham, 473 U.S. 159, 165 (1988). Where plaintiff is seeking damages against a government official, this "necessarily implies" a personal-capacity suit because an official-capacity suit would be barred. See Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n.16 (9th Cir. 1994); Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991).
Drawing all reasonable inferences in plaintiff's favor, the court presumes that the defendants are so named in their personal capacities, thereby rendering moot defendants' motion to dismiss for lack of subject matter jurisdiction. The court therefore recommends that defendants' motion to dismiss for lack of subject matter jurisdiction be disregarded.
III. Motion to Dismiss for Failure to State a Claim
Defendants further seek dismissal of this action pursuant to Federal Rule of Civil Procedure 12(b)(6).
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which apply to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the ...