The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE (DOC. 44) ORDER GRANTING DEFENDANT TILTON'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 40)
ORDER DISMISSING DEFENDANTS CHIEF OF PSYCHIATRIC SERVICES, D. TRINH, NAYLA SYED, JAMES TILTON, AND J. ACOSTA FROM ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM
Plaintiff John Doe*fn1 ("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 amended complaint, filed July 10, 2009, against Defendants John Doe-Chief of Psychiatric Services, Julio Campos, J. Acosta, D. Trinh, Nayla Syed, and James Tilton for violation of the Eighth Amendment. On February 1, 2010, Defendant James Tilton filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted.*fn2 (Def. Tilton Mot. Dismiss, Doc. 40.) On February 22, 2010, Plaintiff filed his opposition. (Pl.'s Opp'n, Doc. 42.) On April 8, 2010, Plaintiff filed exhibits in support of his opposition. (Doc. 63.) No reply was filed. The matter is submitted pursuant to Local Rule 230(l).
On February 22, 2010, Plaintiff also filed a motion to strike portions of Defendant Tilton's motion. (Doc. 44.) Defendant filed an opposition on February 26, 2010. (Doc. 48.) The Court will first adjudicate the motion to strike prior to adjudicating the motion to dismiss.
Plaintiff moves to strike Defendant Tilton's motion pursuant to Federal Rule of Civil Procedure 12(f), contending that portions of Defendant's motion contains scandalous matter and that other portions are redundant. Plaintiff first complains that Defendant in his memorandum of points and authorities wrote that "Plaintiff was sexually assaulted on multiple occasions while 'participating' in a drug smuggling 'conspiracy.'" (Def.'s Mem. P. & A. 1:23-24.) Plaintiff contends that these statements are made in bad faith and cast a cruelly derogatory light on Plaintiff. (Pl.'s Mot. Strike 4:17-19.) Defendant contends that Defendant's description goes towards Plaintiff's state of mind and unwillingness to oppose the drug smuggling plot, and is relevant and material to the motion. (Def.'s Opp'n 2:4-7.)
Motions to strike are disfavored and infrequently granted. Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005). A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter in the litigation. Id. Having reviewed Plaintiff's amended complaint, the Court finds that the description of the incident is taken directly from Plaintiff's complaint and is relevant as to the claims herein, namely whether Defendant Tilton implemented an allegedly deficient mental health policy. Plaintiff's motion to strike on this ground is denied.
Plaintiff further complains that Defendant's description that "Plaintiff did not ask for help from custody staff or report the allegedly traumatic experience to medical staff because he did not want to be labeled a 'snitch'" is redundant, because it is repeated over 13 times. (Pl.'s Mot. Strike 4:26-5:3.) Defendant contends that it is not redundant because Plaintiff in his amended complaint listed each instance that he was sexually assaulted, and thus placed all his activities during each assault at issue. (Def.'s Opp'n 2:17-20.) Defendant's argument is persuasive. Having put each incident of alleged sexual assault at issue, Plaintiff's actions in reporting or not reporting the assault are important to the adjudication of Plaintiff's Eighth Amendment claims, and is thus not redundant. Plaintiff's motion to strike on this ground is denied.
II. Motion To Dismiss - Failure To State A Claim
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, 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 (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 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002).
Pursuant to Rule 8(a), 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). 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. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting ...