The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
REPORT AND RECOMMENDATION AND ORDER
Currently pending before the Court are the following motions: Defendant's Motion to Dismiss (Docket No. 32), Plaintiff's Motion to for Leave to File Supplemental Pleading (Docket No. 34), and Defendant's Motion to Strike Plaintiff's Answer to Defendant's Motion to Dismiss. Having fully reviewed the record, and otherwise being fully informed, the Court enters the following Report and Recommendation and Order.
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, is pursuing a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that on May 20, 2005, he was standing in a prison facility doorway speaking with a prison official when Defendant Shoaf ("Defendant") entered the room, told Plaintiff to "get out," and simultaneously slammed the door. Plaintiff alleges that before he could move, the door knob of the advancing door struck the right side of his lower back, causing him injury. Plaintiff alleges various state claims (assault, battery, and negligence), and a § 1983 complaint against Defendant for use of excessive force in violation of the Eighth Amendment. Plaintiff is seeking declaratory relief and money damages.
Plaintiff filed this complaint against Defendants Chuck Shoaf, Deirde Greene, C. Tyner, Harold Tate, Prison Industry Authority, and California Department of Corrections and Rehabilitation on June 27, 2006. Plaintiff filed an Amended Complaint on August 16, 2007. On June 16, 2008, United States Magistrate Judge Dennis L. Beck Recommended that this action proceed only against Defendant Shoaf on plaintiff's Eighth Amendment claim and state law tort claims, thereby dismissing claims against all other Defendants for failure to state a claim upon which relief may be granted. Findings and Recommendations (Docket No. 20). On August 4, 2008, Chief District Judge Anthony W. Ishii adopted in full Judge Beck's recommendations. Order (Docket No. 28). Accordingly, Plaintiff's only remaining claims are an Eighth Amendment § 1983 claim and state law tort claims against Defendant Shoaf.
A. Standard of Law Governing Motions to Dismiss
Defendant seeks dismissal of all of Plaintiff's remaining claims. A complaint should not be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987)). In reviewing a case for dismissal, the Court is required to treat all allegations of material fact as true and to construe them in a light most favorable to the non-moving party. Id. (quoting Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985), cert. denied, 474 U.S. 1056 (1986)).
The federal courts view Rule 12(b)(6) motions with disfavor. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). A court should dismiss a case without leave to amend only in "extraordinary" cases. United States v. City of Redwood, 640 F.2d 963, 966 (9th Cir. 1981).
Defendant moves for a dismissal on two grounds. Motion to Dismiss, pp. 4--7 (Docket No. 32). First, Defendant asserts that this action is barred by California's two-year statute of limitations. Second, Defendant argues that, because the complaint appears to state only an official capacity claim, and he is not a person within the ...