The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER GRANTING MOTION TO DISMISS AND DISMISSING DEFENDANT BROWN WITH LEAVE TO AMEND (Documents #23 & #31)
This civil rights action is brought by Plaintiff Oscar A. Clifton, and it stems from his denied request for post-conviction DNA testing. This court has jurisdiction over the action pursuant to 28 U.S.C. § 1331.
On June 26, 2008, Plaintiff filed an amended complaint ("complaint"). The complaint names Phillip J. Cline, District Attorney for the County of Tulare ("Defendant D.A. Cline"), and Edmund G. Brown, Jr., Attorney General for the State of California ("Defendant A.G. Brown"), as Defendants. Plaintiff requests relief pursuant to 42 U.S.C. § 1983. Plaintiff contends he has the right to post-conviction DNA testing of evidence from Plaintiff's criminal case that is still in existence and an accounting of all remaining evidence.
On October 14, 2008, Defendant A.G. Brown filed a motion to dismiss. Defendant A.G. Brown contends that he is entitled to dismissal because he is only named in the complaint in his position as the District Attorney of Tulare County's supervisor. Defendant A.G. Brown argues that he cannot be held liable under a theory of respondeat superior or another vicarious liability theory.
On November 11, 2008, Plaintiff filed an opposition. Plaintiff contends that even if Defendant A.G. Brown did not directly participate in the deprivations of Plaintiff's rights, he knew of the violations and failed to prevent them. Plaintiff contends that a Deputy Attorney General filed an opposition to Plaintiff's petitions for DNA testing in the California courts and made incorrect representations to the court. Plaintiff also points out that pursuant to California Penal Code § 1405 Defendant A.G. Brown has a direct role in overseeing tests that are conducted.
On November 21, 2008, Defendant A.G. Brown filed an reply. Defendant A.G. Brown contends that he has no causal connection to Plaintiff's purported injury.
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted". Fed.R.Civ.Pro. 12(b)(6). A Rule 12(b)(6) dismissal can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).
For a complaint to avoid dismissal pursuant to Rule 12(b)(6), the complaint need not contain detailed factual allegations; rather, it must plead "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); Weber v. Department of Veterans Affairs, 512 F.3d 1178, 1181 (9th Cir. 2008). The complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1964-65. Federal Rule of Civil Procedure 8(a)(2) requires a "showing" that the plaintiff is entitled to relief, "rather than a blanket assertion" of entitlement to relief. Id. at 1965 n. 3.
The facts underlying this case are lengthy, well known to the parties, and mostly unnecessary to resolve the pending motion. In short, on July 14, 1976, Plaintiff was convicted of murder, kidnaping, and attempted rape. The complaint alleges that Plaintiff has always maintained his factual innocence. After California Penal Code § 1405 was enacted in 2001 Plaintiff filed a petition for post-conviction DNA testing. As a result, four items were tested: (1) The victim's green pants; (2) The victim's underpants; (3) The victim's sanitary napkin and belt; and (4) Plaintiff's bone-handled pocket knife. The DNA test of the victim's belongings revealed no sperm. The testing of Plaintiff's knife revealed dried blood that could not be typed.
Subsequently, the lab stated that it had discovered in its possession 46 slides pertaining to Plaintiff's case. Plaintiff then filed a second petition pursuant to Section 1405, in which he asked for testing of the newly discovered slides. This petition was opposed by the California Attorney General's office, which contended that the 46 slides were only reference samples or would only provide inculpatory evidence.Plaintiff's second petition was then denied by the California courts.
The complaint alleges that the California Attorney General's office's representations to the court concerning the 46 slides were incorrect. The complaint alleges the representations were based on a letter from Terri Ghio at Forensic Analytical, in which she stated that the slides did not contain any semen. The complaint alleges that in a follow up letter, Ms. Ghio indicated that no DNA testing or other tests were performed on these slides. The complaint alleges that at least 23 of the 46 slides are material, relevant evidence in Plaintiff's case and are not merely reference samples. The complaint alleges that these slides include hairs ...