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Anthony Adducci v. Kelly Harrington

December 1, 2010

ANTHONY ADDUCCI,
PLAINTIFF,
v.
KELLY HARRINGTON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS THE CLAIM AGAINST SANDOVAL FOR FAILURE TO STATE A CLAIM BE GRANTED, AND DEFENDANTS' MOTION TO DISMISS THIS ACTION FOR FAILURE TO EXHAUST BE GRANTED THIRTY-DAY OBJECTION PERIOD

(Doc. 41)

Findings and Recommendations Addressing Motion to Dismiss

I. Procedural History

Plaintiff Anthony Adducci, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 24, 2007. This action is proceeding on Plaintiff's amended complaint, filed May 8, 2008, against Defendants Lawless, Christian, Brocket, and Sandoval for failing to protect Plaintiff from harm, in violation of the Eighth Amendment.

On March 24, 2010, Defendants filed a motion seeking to dismiss Defendant Sandoval for failure to state a claim and to dismiss the action for failure to exhaust. Fed. R. Civ. P. 12(b). On May 20, 2010, after obtaining an extension of time, Plaintiff filed a statement of non-opposition to the dismissal of Defendant Sandoval and an opposition to the dismissal of the action for failure to exhaust.*fn1 Defendants filed a reply on June 4, 2010, and the motion was deemed submitted. Local Rule 230(l).

II. Motion to Dismiss for Failure to State a Claim

A. Legal Standard

"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), which 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). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

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," Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

B. Discussion

Defendants move for dismissal of the claim against Defendant Sandoval on the ground that Plaintiff failed to allege sufficient facts to support the claim that Sandoval violated his constitutional rights. In response, Plaintiff filed a statement of non-opposition to the dismissal of Defendant Sandoval for failure to state a claim. (Doc. 47, Opp., 7:7-9.) The Court agrees that the amended complaint fails to state a cognizable claim for relief against Defendant Sandoval, and it recommends that Defendants' unopposed motion to dismiss the claim be granted. Fed. R. Civ. P. 8(a); Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. In light of Plaintiff's non-opposition to the dismissal of Defendant Sandoval, the Court recommends dismissal without leave to amend.*fn2

III. Motion to Dismiss for Failure ...


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