The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS THE COMPLAINT [DOC. NO. 13]
Plaintiff Randin Lee Martin, a state inmate proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on April 2, 2007 [doc. no. 1]. Martin alleges that on September 26, 2005, Defendants J. Hurtado and C. Bugarin, both correctional officers at Calipatria State Prison, violated Plaintiff's First Amendment right to freedom of speech by confiscating his television in retaliation for an inmate grievance he had filed against another officer. (Compl. 3.)*fn1 Plaintiff's Complaint further alleges that Defendant J. J. Aguirre, in denying the grievance Martin filed against Hurtado and Bugarin for confiscating his television, violated Plaintiff's Fourteenth Amendment "administrative disciplinary due process protections in knowing disregard of the fact that Plaintiff's constitutional rights were violated." (Id. at 6.)
Defendants filed a Motion to Dismiss the Complaint [doc. no. 13] on February 15, 2008, with a Memorandum of Points and Authorities in Support of the Motion. Defendants argue the current action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted. (Defs.' Mem. P. & A. 2.) They contend that Plaintiff fails to state a First Amendment retaliation claim against Hurtado and Bugarin because the officers had a legitimate penological reason to seize Martin's television. (Id. at 5-6.) Additionally, the Complaint does not allege that these Defendants actually chilled Plaintiff's First Amendment rights. (Id. at 7.) Defendant Aguirre claims that he cannot be held liable for a First Amendment claim under a theory of supervisory liability. (Id.) Lastly, Defendant Aguirre argues the Complaint fails to allege a due process claim against him because Plaintiff does not have a due process right to administrative grievance procedures. (Id. at 8.)
On June 16, 2008, Martin filed a Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss [doc. no. 19], along with a Request for Judicial Notice and a Declaration with four supporting exhibits. The Court found the Motion was suitable for resolution without oral argument pursuant to Civil Local Rule 7.1(d)(1). (Mins. Apr. 18, 2008 [doc. no. 18].) For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
Plaintiff is currently incarcerated at Calipatria State Prison. (See Compl. 1.) He was transferred to Calipatria on September 26, 2005, from Corcoran State Prison. (Pl.'s Opp'n 3-4.) Martin had a thirteen-inch color television which was transferred to Calipatria with him. (Id. at 4-5; Compl. 3.) Before he was transferred, the television was inspected by officers at Corcoran who determined that it was in compliance with institutional regulations. (Pl.'s Opp'n 3-5.)
Correctional Officers Hurtado and Bugarin processed Plaintiff and his personal property upon arrival at Calipatria. (See Pl.'s Opp'n 4; Compl. 3.) Martin contends that while searching his legal property, Defendants Hurtado and Bugarin discovered a large manila envelope which contained correspondence from Plaintiff to the California Inspector General's Office in which he complained about an assault committed by another correctional officer. (Compl. 3-4; Pl.'s Opp'n 4.) Although the material was clearly marked "Confidential," Hurtado and Bugarin read the grievance and thereafter became "openly hostile" toward Martin. (Compl. 3.) Plaintiff alleges they seized his television for the purpose of retaliating against him for filing an administrative grievance alleging misconduct by another officer. (Id.) Defendants Hurtado and Bugarin claimed that they seized the television because it was in violation of regulations because the glue seals had been tampered with. (Id. at 5; Pl.'s Opp'n 6.)
Martin filed an administrative grievance against Defendants Hurtado and Bugarin which was reviewed by Defendant J. J. Aguirre, a Calipatria correctional sergeant, on November 16, 2005. (Compl. 4.) Plaintiff contends that Aguirre failed to perform his duties as a correctional sergeant and appeals reviewer by not conducting an investigation into Martin's allegations. (Pl.'s Opp'n 5.) Plaintiff argues that by failing to intervene, Defendant Aguirre affirmed Defendant Hurtado and Bugarin's retaliatory actions, thereby denying Plaintiff's liberty interests in an unbiased grievance procedure and meaningful review. (Id.)
II. LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS
A. Rule 12(b)(6) Motion 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. 2008) ("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)(footnote omitted).").
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). Additionally, the Court may consider matters that are subject to judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
These Rule 12(b)(6) guidelines apply to Defendants's 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). Even when leave to amend is granted, the Court must provide the plaintiff with a statement of the complaint's deficiencies before a pro se civil rights complaint may be dismissed. Karim-Panahi, 839 F.2d at 623-24. This is "to ensure that the litigant uses the opportunity to amend effectively." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).
C. Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting "under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983 (West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).
III. MERITS OF DEFENDANTS' MOTION TO DISMISS
A. Plaintiff's Request for Judicial Notice
Martin filed a Request for Judicial Notice [doc. no. 19], wherein he requests that the Court take judicial notice of the following regulations and operation procedures: (1) California Code of Regulations section 3084.1, which establishes an inmate's right to appeal departmental decisions; (2) California Code of Regulations section 3190, which concerns an inmate's right to possess personal property; (3) California Code of Regulations section 3191, which concerns the registration and disposition of an inmate's personal property ; (4) California Code of Regulations section 3144, which describes the procedures for inspecting an ...