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Nelson v. Almager

February 6, 2009

AUGUSTUS NELSON, CDCR# C-66719, PLAINTIFF,
v.
VICTOR M. ALMAGER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COMPLAINT PLAINTIFF'S SECOND AMENDED [Doc. No. 32]

I. Procedural Background

On May 24, 2007, Augustus Nelson ("Plaintiff"), a state prisoner currently incarcerated at the California Substance Abuse and Treatment Facility located in Corcoran, California, proceeding pro se and in forma pauperis ("IFP"), filed a Complaint pursuant to 28 U.S.C. § 1983. The Court conducted a sua sponte screening as required by the Prison Litigation Reform Act ("PLRA") and dismissed Plaintiff's Complaint for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2). See July 2, 2007 Order at 6. Plaintiff later filed his First Amended Complaint on October 4, 2007. Once again, the Court conducted the required screening and found that Plaintiff's First Amended Complaint failed to state a claim upon which relief could be granted. See Jan 10, 2008 Order at 5.

Plaintiff then filed his Second Amended Complaint ("SAC") on April 25, 2008. The Court found that Plaintiff's Fourteenth Amendment due process claims survived the sua sponte screening and directed the U.S. Marshal Service to effect service of Plaintiff's Second Amended Complaint on July 7, 2008. See July 8, 2008 Order at 4. In addition, Plaintiff was cautioned that the "sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring." Id. at 3 (citing Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal. 2007).

Defendants filed a Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) on October 8, 2008. Plaintiff later filed a "Motion for Extension of Time to File Response" which was granted by the Court and Plaintiff was given until December 1, 2008 to file his Opposition to Defendants' Motion. See Nov. 18, 2008 Order at 1. To date, Plaintiff has failed to file an Opposition. While this matter was referred to Magistrate Judge Ruben B. Brooks for disposition pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. CAL. CIVLR 72.3, the Court has determined that a Report and Recommendation regarding Defendants' Motion to Dismiss is unnecessary. See S.D. CAL. CIVLR 72.3(a) (unless all parties consent, dispositive motions filed in § 1983 prisoner cases are referred to magistrate judges for "proposed findings and recommendations to the district judge, unless the district judge orders otherwise.").

II. Factual Background

On October 12, 2005, Plaintiff was summoned to meet with his Correctional Counselor, Defendant Renteria, to conduct an "Olsen Review." An Olsen review is an administrative procedure that allows an inmate to review his central file ("c-file"). (SAC at 18.) This review was to prepare for Plaintiff's upcoming Parole Board hearing. (Id.) Plaintiff had previously requested a copy of the "Board of Prison Term Notice of Hearing Rights." (Id.) Defendant Renteria refused to give Plaintiff a copy and told Plaintiff he would have to obtain it directly from the Board of Prison Terms. (Id.)

Plaintiff alleges that Defendant Renteria then asked him "do you want to review your c-file or not." (Id. at 19.) Plaintiff indicated that he did want to review his c-file and asked for both volumes. (Id.) Renteria replied that "if you are requesting File Number 2, I will order it when time permits." (Id.) Plaintiff responded by asking Renteria how would he be able to prepare a Parole Board report if Renteria only had half of the information and said to Renteria "man, you're a butthole." (Id.) Plaintiff then asked for a different correctional counselor to prepare his Parole Board report because he believed Renteria displayed "a negative attitude towards him," as well as speaking to him in a "belittling manner." (Id. at 19-20.) Renteria told Plaintiff to leave his office. (Id.)

On October 17, 2005, Plaintiff was issued a CDC 115 "Serious Rules Violation Report" in which he was charged with "disrespect towards staff." (Id. at 20.) The report was prepared by Renteria. (Id.) Plaintiff claims he was denied the "prior notification process required before being issued a misconduct rule violation report." (Id. at 21.) As a result of the disciplinary action, Plaintiff was denied privileges, including yard activities, for a period of ninety days. (Id.) Moreover, Plaintiff claims that the rules violation report authored by Renteria was the reason he was denied parole. (Id. at 22.) In addition, Plaintiff claims Defendant Calderon, who is responsible for classifying all rule violation reports, deliberately classified the disciplinary report as serious when it should have been classified as "minor infraction." (Id. at 24.)

Defendant Fox was the hearing officer who presided over Plaintiff's disciplinary hearing on October 19, 2005. (Id. at 25.) After hearing Plaintiff's not guilty plea, Defendant Fox found Plaintiff guilty of a serious rules violation. (Id. at 26.) However, Plaintiff claims that Defendant Fox did not rely on any "independent evidence of fact" to support his finding. (Id.) Plaintiff also seeks to hold the remaining Defendants liable in their capacity to reduce the serious charge to a "minor infraction" and for failing to overturn the disciplinary conviction.

III. Defendants' Motion to Dismiss Pursuant to FED.R.CIV.P. 12(b)(6)

A. FED.R.CIV.P. 12(b)(6) Standard of Review

A motion to dismiss for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. 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. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

The court looks not at 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). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000) (en banc) (district court should grant leave to amend when complaint fails to state a claim "unless it determines that the pleading could not possibly be cured by the allegation of other facts" and if "it appears at all possible that the plaintiff can correct the defect") (citations omitted).

Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). And, while liberal construction is "particularly important in civil rights cases," Ferdik, 963 F.2d at 1261, "[t]he plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support ...


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