The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT
On February 1, 2007, Plaintiff Bruce Thorns, a state prisoner incarcerated at California State Prison-Sacramento located in Represa, California, proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 against the warden and numerous correctional officers at Calipatria State Prison, the institution where Plaintiff was confined at the time of the events giving rise to the complaint in this case. (Doc. No. 1.) On July 3, 2007, Defendants filed a motion to dismiss Plaintiff's complaint for failure to exhaust administrative remedies. (Doc. No. 32.) On September 21, 2007, Defendants Ryan and Alvarez filed another motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 51.) On February 26, 2008, this Court issued an Order denying motion to dismiss for failure to exhaust, and granting with partial leave to amend motion to dismiss by Defendants Ryan and Alvarez. (Doc. No. 58.)
On April 15, 2008, Plaintiff filed a First Amended Complaint ("FAC") alleging excessive force, retaliation, due process, conspiracy and deprivation of personal property claims against twenty-five Defendants. (Doc. No. 61.) On May 15, 2008, all served twenty-three Defendants*fn1 filed a motion to dismiss the FAC. (Doc. No. 62.) Plaintiff filed an opposition to Defendants' motion on June 12, 2008. (Doc. No. 65.) Defendants filed a reply on June 19, 2008. (Doc. No. 66.) Defendants' motion to dismiss was granted in part and denied in part by the Report and Recommendation ("R&R") on August 1, 2008. (Doc. No. 67.) The R&R was adopted on January 23, 2009 and the Plaintiff was granted leave to amend. (Doc. No. 71.)
On March 9, 2009, Plaintiff filed a second amended complaint ("SAC") pursuant to 42 U.S.C. § 1983, alleging excessive force, retaliation, due process, conspiracy and deprivation of personal property claims against thirteen Defendants: R.A. Davis, B.C. Reis, T.E. Borem, A. Casillas, S. Ritter, S. Crittendon, A. Elizondo, M. Ramirez, S. Ryan, M.W. O'Connell, J. Rivas, Z. Limas, and M. Whitman. (Doc. No. 77.) On April 22, 2009, Defendants filed a motion to dismiss the SAC on the grounds that: (1) Defendants are immune from liability for damages in their official capacities under the Eleventh Amendment; (2) Plaintiff has failed to state a retaliation, due process, conspiracy or deprivation of property claim; and (3) Defendants are protected by qualified immunity. (Doc. No. 86.) Defendants also contend that the Plaintiff's request for injunctive relief is moot. (Id.) Plaintiff filed a response in opposition on June 19, 2008. (Doc. No. 92.)
After due consideration, the Court GRANTS Defendants' motion to dismiss Plaintiff's SAC as to all Defendants to the extent that Plaintiff seeks monetary damages against them in their official capacities. The Court also GRANTS Defendants' motion to dismiss Plaintiff's claims of due process violations, conspiracy, and deprivation of property. The Court GRANTS Defendants' motion to dismiss Plaintiff's retaliation claim as to Defendants Ryan, Ries, Ramirez and Elizondo. The Court DENIES Defendants' motion to dismiss Plaintiff's retaliation claim as to Defendants Borem and Whitman. Finally, the Court GRANTS Defendants' motion to dismiss Plaintiff's request for injunctive relief as moot.
The SAC alleges that prison officials used excessive force on Plaintiff during an October 13, 2004 altercation between prisoners and correctional officers at Calipatria State Prison. (Doc. No. 77, ¶¶ 21-23.) Plaintiff claims that Defendant O'Connell struck Plaintiff with a baton on the right ankle, and then on the left side of the head, which rendered Plaintiff unconscious, left a large hematoma, and caused some hearing loss in his left ear. (Id. ¶¶ 22-23.) Plaintiff alleges that when Plaintiff regained consciousness, he was on the ground in handcuffs, and Defendant Casillas sprayed him in the face with Oleoresin Capsicum ("OC"), also known as pepper spray. (Id. ¶ 24.) The SAC alleges that Defendant O'Connell struck Plaintiff's upper and lower body with a baton while making racial and discriminatory remarks, until Plaintiff's right ankle broke. (Id. ¶ 27.) Plaintiff's SAC alleges that he was later x-rayed at the hospital and treated by medical staff with a temporary cast. (Id. ¶ 31.)
Plaintiff alleges that from then on, he was harassed and threatened by various officers. (Id. ¶¶ 33-52.) Plaintiff also alleges Defendants conspired and retaliated against him for exercising his constitutional rights by placing him in administrative segregation, taking away his good time credits, and transferring him to a different prison. (Id.) Plaintiff also alleges Defendant Borem deprived him of his property when Borem ordered to take away Plaintiff's television and radio. (Id. ¶ 45.)
Defendants seek dismissal of Plaintiff's claims to the extent that he is suing them in their "official capacity." (Doc. No. 87 at 6.) While the Eleventh Amendment bars a prisoner's section 1983 claims against a state actor sued in his official capacity, it does not bar damage actions against a state official sued in his personal or individual capacity. Hafer v. Melo, 502 U.S. 21, 31 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 70--71 (1989); Pena v. Gardner, 976 F.2d 469, 472-73 (9th Cir. 1992).
Here, Plaintiff brings this section 1983 suit against Defendants in both their official and individual capacities. (Doc. No. 77, ¶ 20.) The Eleventh Amendment imposes no bar to Plaintiff's damages action against Defendants for acts alleged to have been taken in their personal capacity. See Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995). The Supreme Court has made it clear that a plaintiff can seek damages in a section 1983 action if he alleges facts sufficient to show personal liability through individual actions or omissions, taken under color of state law, which cause the deprivation of Plaintiff's constitutional rights. Hafer, 502 U.S. at 25.
Accordingly, the Court GRANTS Defendants' Motion to Dismiss on Eleventh Amendment grounds only to the extent that Plaintiff seeks monetary damages against them in their official capacities.
II. Motion to Dismiss Pursuant to Rule 12(b)(6)
Defendants seek dismissal of Plaintiff's SAC pursuant to the Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim under 42 U.S.C. § 1983. (Doc. No. 87 at 7.) To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Lazy Y. Ranch v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. 544, 554. A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly at 556). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 554 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235--36 (3d ed. 2004)).
Generally, the allegations in the complaint are accepted as true and construed in the light most favorable to the plaintiff. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996); see also Twombly, 550 U.S. at 555.
In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Nevertheless, it is not proper for the court to assume that "the [plaintiff] can prove ...