The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner*fn1 proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is 1) defendant's July 24, 2008, motion to dismiss the second amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), to which plaintiff filed objections, which the court construes as an opposition, after which defendant filed a reply; 2) plaintiff's request for judicial notice in support of his motion, filed on July 24, 2008; 3) plaintiff's defective request for summary judgment, filed on September 15, 2008, is stricken as failing wholly to comply with Fed. R. Civ. P. 56.
The court will not reiterate here the history of this action, which has been exhaustively set forth in the court's Order and Findings and Recommendations, filed on February 28, 2008 (Docket # 37), wherein plaintiff was granted leave to amend as to defendant Rodriguez only, and it was recommended that defendants' previous motion to dismiss be granted with prejudice as to defendants Buford and Iniguez, which Findings and Recommendations were adopted by Order, filed on March 20, 2008 (Docket # 38).
On April 21, 2008, plaintiff filed a second amended complaint,*fn2 naming as the sole defendant Parole Agent R. Rodriguez of the San Jose Region II office. Second Amended Complaint (SAC), pp. 2-3. Defendant Rodriguez is plaintiff's parole agent, responsible for supervising plaintiff's parole and for discharging plaintiff from parole. Id., at 3. Although plaintiff had been discharged from parole as of April 17, 2005, for which plaintiff had signed a CDC 1515 form (a copy of which plaintiff does not attach to his complaint), defendant Rodriguez placed a parole hold on plaintiff on July 12, 2006, and thereafter charged plaintiff with "approx[imately]" two parole violations. Id., at 3-4. Defendant Rodriguez was deprived of his liberty for eight months, was exposed to prison riots, was unable to work, and deprived of his family's support due to the actions of defendant Rodriguez. Plaintiff seeks money damages and declaratory relief in the form of a declaration that plaintiff's parole discharge date was April 17, 2005. Id., at 3.
Defendants move for dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6)*fn3 on the grounds that: 1) plaintiff's factual allegations, along with documents subject to judicial notice, demonstrate plaintiff was not held past his parole discharge date; 2) & 3) his factual allegations fail to state a cognizable due process claim or a cognizable Eighth Amendment claim; 4) even if defendant Rodriguez did not follow state law, plaintiff fails to state a claim; 5) at most, plaintiff alleges a state tort claim for false imprisonment which is barred by his failure to comply with the California Tort Claims Act; 6) plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994); 7) defendant Rodriguez is entitled to qualified immunity. Motion to Dismiss (MTD), pp. 1-15.
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, 550 U.S. 544, 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 ...