The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS (DOC. 36)
ORDER REQUIRING DEFENDANT TO FILE ANSWER WITHIN TWENTY DAYS
Plaintiff William Nible ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's second amended complaint, filed July 21, 2009, against Defendant E. Flores for violation of the First Amendment. On December 4, 2009, Defendant filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and pursuant to the unenumerated portion of Rule 12(b) for failure to exhaust administrative remedies. (Def.'s Mot. Dismiss, Doc. 36.) On January 22, 2010, Plaintiff filed his opposition.*fn1 (Pl.'s Opp'n, Doc. 41.) On May 19, 2010, Defendants filed their reply. (Defs.' Reply, Doc. 42.) The matter is submitted pursuant to Local Rule 230(l).
Pursuant to Local Rule 230(l), the moving party is required to respond to the non-moving party's opposition within 10 days from the date of service of the opposition. Defendants' reply is nearly four months late. The Court will thus not consider the reply.
II. Summary Of Second Amended Complaint
Plaintiff contends that on three occasions, Defendant E. Flores deprived Plaintiff of his First Amendment right to send and receive mail. Plaintiff contends that on June 5, 2006, his mail had been returned to sender without giving Plaintiff any notice. Plaintiff alleges that on June 8, 2006, he was notified by a bookstore that his order had been returned to sender under the direct supervision and knowledge of Defendant Flores, without notice. Plaintiff alleges that on June 9, 2006, another order was being refunded, because it was being returned to sender.
III. Failure To State A Claim
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
Defendant contends that Plaintiff's claims are premised on respondeat superior liability and fail as a matter of law. Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The Supreme Court recently emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S.Ct. at 1949. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 1948. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct; therefore, Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948-49.
Here, Plaintiff does not allege mere respondeat superior liability. Plaintiff alleges direct knowledge and participation by Defendant E. Flores in returning Plaintiff's mail to sender without notice. At the pleading stage, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff, Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam), as long as the allegations state a claim plausible on its face, Iqbal, 129 S.Ct. at 1949. Here, the Court finds Plaintiff's claims plausible, and construing all allegations of material fact as true, Plaintiff raises a ...