The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' August 25, 2008, motion to dismiss for failure to state a claim pursuant to Fed. R Civ. P. 12(b)(6). After carefully considering the record, the court recommends that defendants' motion be granted.
LEGAL STANDARD FOR MOTION TO DISMISS
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
In considering a motion to dismiss, 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, 96 S.Ct. 1848, 1850 (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, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
This action is proceeding on the amended complaint filed April 24, 2008, as to defendants Walker, Just and Thompson.
Plaintiff alleges that on January 1, 2007, defendant Thompson falsely charged plaintiff with a prison disciplinary for possession of controlled medication in violation of Cal.
Code Regs. tit. 15, § 3016.*fn1 On January 29, 2007, defendant Just wrongly convicted plaintiff of the rules violation. Plaintiff claims that defendant Just violated his right to due process by refusing to let plaintiff's investigative employee retrieve the correct name of the medication from the label on the outside of the bags in which it was found. Plaintiff alleges that defendant Warden Walker had knowledge of the false allegations and wrongful conviction.
Attached as exhibit D to the amended complaint is a copy of the rules violation report. The circumstances of the offense are described in the report by defendant Thompson:
On 1/1/07 at approximately 1850 hours, while performing a search of cell FB2-207, jointly occupied by inmates STATEN (D-18498) and OTIS (H-14654), the following Controlled Medication was found: Drug name: Seraquel 300 mg. 177 tablets Trileptal 600 mg. 46 tablets.
The above listed Medication was identified by MTA Schiller as Psychotropic Medication. All medication was located inside resealable plastic baggies with a Pharmacy pre-printed label assigned to inmate STATEN, it should be noted that the labels, as marked indicated an altogether different medication than ...