The opinion of the court was delivered by: Susan P. Graber United States Circuit Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT
On September 11, 2008, Plaintiff Lorenzo Segura, a state prisoner incarcerated at California's High Desert Prison, proceeding without counsel, filed this civil rights action under 42 U.S.C. § 1983. Clerk's Record, Docket No. 1 ("Doc." 1.). Plaintiff was confined at the time of the events giving rise to the complaint. On May 13, 2009, this court determined that the complaint stated cognizable claims for relief "stemming from allegations that Defendants failed to provide Plaintiff access to legal materials and destroyed Plaintiff's personal property, including legal materials, in retaliation for his using administrative grievance procedures, in violation of his First Amendment right to free speech and the Fourteenth Amendment's prohibition against deprivation of life, liberty, or property without due process of law." (Doc. 16.) The complaint named Defendants Warden T. Felker, Correctional Officer ("C/O") McGuire, C/O Sanchez, C/O Green, C/O Fannon, Sgt. Ingwerson, Sgt. Medonca, and Sgt. Carrera. (Doc. 1.)
On September 24, 2009, all Defendants filed a motion to dismiss Plaintiff's complaint. (Doc. 22.) On November 4, 2009, Plaintiff filed an opposition. (Doc. 25.)
B. Summary of Alleged Facts
Plaintiff alleges that Defendants have denied him access to legal materials in an unspecified ongoing case. On August 30, 2006, Plaintiff asked Defendant Medonca for access to his legal materials. Defendant Medonca told Plaintiff to ask Defendant McGuire. On September 7, 2006, Plaintiff asked Defendant McGuire for his legal materials. Defendant McGuire promised to return later with his materials, but did not return. On October 11, 2006, Plaintiff asked C/O Micone for access to his legal materials. C/O Micone told Plaintiff to ask Defendants McGuire and Sanchez. On October 20, 2006, Defendant Sanchez and C/O Micone visited Plaintiff's cell. Defendant Sanchez told Plaintiff that he would not bring Plaintiff his legal materials. On November 22, 2006, Plaintiff asked Defendant McGuire. Defendant McGuire told Plaintiff to ask Defendant Medonca. On January 16, 2006, Plaintiff again asked Defendant McGuire, who responded that Plaintiff would not be getting anything so stop asking. Defendant McGuire called Plaintiff a "cry baby."
Plaintiff alleges that his personal property has been destroyed. Plaintiff alleges that all of his legal mail has been opened outside his presence and read in violation of California law. Plaintiff alleges that Defendants' conduct constitutes retaliation.
Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In considering a Rule 12(b)(6) motion, the court must accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). In addition, the pleadings of a litigant proceeding without counsel should be construed liberally. Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim must have facial plausibility to survive a motion to dismiss, and facial plausibility arises 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.
When ruling on a motion to dismiss, the court generally may not consider material outside the complaint. Friedman v. Boucher, 580 F.3d 847, 852 n.3 (9th Cir. 2009). But the court may consider materials outside the complaint "[i]n deciding a motion to dismiss for failure to exhaust non-judicial remedies." Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003).
1. Exhaustion of Non-judicial ...