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Lopez v. Hubbard

January 29, 2010

KENNETH LOPEZ, PLAINTIFF,
v.
SUE HUBBARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 28 U.S.C. § 1983. Pending before the court is the November 13, 2009, motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed on behalf of defendant Grannis. For the following reasons, the court orders that defendant's motion be granted, but with leave to amend.

Legal Standard 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).

Discussion

This action is proceeding on the original complaint filed July 15, 2009. Defendants Hubbard, Rodriguez, Arnold and Hill have answered the complaint. Defendants Rapoza, Garcia, Porter and Campbell have not yet appeared.

Plaintiff alleges that for many years he has been assaulted and harassed by cellmates at different prisons. Plaintiff alleges that defendants failed to protect him from these assaults in violation of the Eighth Amendment.

The specific allegations against defendant Grannis are as follows: Roseanne Campbell, Silvia H. Garcia, N. Grannis, D.L. Porter comprise the decision makers in Pla. Administrative Appeal (Ex. 1, Second Level Appeal Response; Director's Level Appeal Decision). Each of the four was in position, and had capacity, to grant the appeal. It appears that Pla. references to in-cell victim history and specified documentation therefor, has been ignored by these defendants. Campbell and Grannis are accounted, indirectly, in that they are supervisory figures to Garcia and Porter respectively.

Complaint, p. 6 of 10.

Attached as Exhibit 1 to the complaint is a copy of a Director's Level Appeal Decision dated May 12, 2006. The issue addressed by this appeal is plaintiff's claim that on November 22, 2005, the Unit Classification Committee (UCC) at Mule Creek State Prison inappropriately approved plaintiff for double cell housing. Court file document no. 1-2, Complaint, Exhibit 1, p. 11of 52. Plaintiff claimed that he had repeatedly been victimized and deserved single cell status. Id.

The response to this grievance includes the second level decision which found that the UCC noted that plaintiff was involved in a cell fight in 1999, but this did not preclude double cell housing. Id. The second level decision also stated that the institution pointed out that plaintiff did not have a history of in-cell assaultive, abusive or predatory ...


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