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Armstrong v. Redding Parole Dep't

December 18, 2009

JERRY W. ARMSTRONG, PLAINTIFF,
v.
REDDING PAROLE DEPT., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff, proceeding in pro per, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Defendants' motion to dismiss (Docs. 26, 28). A hearing on this motion was held on December 3, 2009, before the undersigned. Defendants' attorney William Brodbeck, appeared telephonically. Plaintiff appeared in person.

I. BACKGROUND

Plaintiff, a state parolee, brings this action against his parole officers. Plaintiff's complaint clearly states he is bringing this action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint is very hard to read and understand. However, on screening, the court construed it liberally and in the best possible light to Plaintiff, and found it was possible that he set forth sufficient facts to state a claim. Specifically, the court stated:

Plaintiff's complaint identifies the following defendants: the Redding Parole Department, Al Berdon, Kevin McClure, and Mitch Crowfoot. He alleges he is being mistreated by parole agents who are adding terms of conditions to his parole which were not ordered by the court, is being held without court authority, and is being denied due process. He also alleges false imprisonment, fraud, and conspiracy with the intent to keep him on parole past his time. He claims his rights under the Fourth, Fifth, and Fourteenth Amendments have been violated by the actions of the defendants. (Order, Doc. 11, at 2).

II. MOTION TO DISMISS

A. Basic Standard

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under 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." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

B. Motion

Defendants bring this motion to dismiss claiming that Plaintiff's sole remedy is a petition for writ of habeas corpus. Defendants construe Plaintiff's claims as a challenge to his parole status, a challenge to the parole system itself, or a challenge to the conditions of his parole. They argue that if Plaintiff is challenging his parole status or the terms of his parole, his only option to do so is through habeas proceedings. In addition, his request for monetary relief is barred by Heck v. Humphrey, 512 U.S. 477, 483-84 (1994). To the extent Plaintiff is challenging the parole system itself, and claiming it violates his Fourteenth Amendment rights, he fails to state a claim. Defendants also argue that Plaintiff has not alleged sufficient ...


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