The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On July 15, 2009, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff did not file an opposition. Accordingly, on September 15, 2009, the court recommended that defendants' motion be granted.
On September 25, 2009, plaintiff filed an opposition to defendants' motion. While the opposition does not address why plaintiff failed to file a timely opposition, this one time the court will deem the September 25, 2009, opposition to be timely filed. SeeOctober 13, 2009 "Motion to Vacate Judgment." The September 15, 2009, findings and recommendations are vacated.
After reviewing the pleadings, the court finds that a reply by defendants to the opposition is not necessary. For the following reasons, defendants' motion is granted with leave to amend.
II. Legal Standards 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). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
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 v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
This action is proceeding on the amended complaint filed February 23, 2009, as to defendants Felker, Foulk and Hernandez. Plaintiff alleges that on October 31, 2007, defendants Foulk and Hernandez placed him in administrative segregation (ad seg) after he was charged with conspiracy to assault staff. Plaintiff claims that defendants Foulk and Hernandez knew that the charges were false. Plaintiff alleges that being housed in ad seg caused him to suffer severe depression, as a result of which he attempted to hang himself a few days later. Defendant Felker later found him guilty of the charges and sentenced him to 28 months in ad seg even though he knew that plaintiff was not guilty. One year and 14 days later, plaintiff was fully exonerated of the charges.
Plaintiff alleges that defendants denied him of his liberty interest and intentionally inflicted emotional distress. As relief, plaintiff seeks expungement of the disciplinary charges he was exonerated of and money damages.
Defendants first argue that plaintiff has not stated a colorable due process claim. Confinement in administrative segregation for several months, absent more, does not constitute an "atypical and significant hardship" in ...