The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He alleges that defendant Hixson failed to respond to the informal level of plaintiff's grievance about her disruption of his prayers and prepared a number of false or improper Rules Violation Reports (RVR) in retaliation for his initial 602. She also opened some of plaintiff's confidential mail and told him to get out of her face and destroyed or otherwise mishandled his grievances. In addition, defendant Hixson "violently bent" his right wrist while handcuffing him and then grabbed him by the shirt collar and used an entire canister of pepper spray on him; defendant Hilsky, who was present, did not intervene.
Defendants have filed a motion to dismiss for failure to state a claim.
Plaintiff filed a response to defendants' reply to his opposition to the motion to dismiss. Docket No. 25. Defendants have filed a motion to strike.
When a party has raised new arguments or presented new evidence in a reply to an opposition, the court may permit the other party to counter the new arguments or evidence. El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003). Defendants' reply addressed the argument in plaintiff's opposition; it raised no new theories. Accordingly, plaintiff's "response to defendants' reply" will be stricken.
II. Standards For A Motion To Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim 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, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89, 93 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Generally, a court must resolve a motion to dismiss under rule 12(b)(6) by looking only at the face of the complaint. Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002). It may, however, rely on documents attached to the complaint or incorporated by reference in the complaint or matters subject to judicial notice without converting the motion to dismiss into a summary judgment motion. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003).
In this case, defendants have asked the court to take judicial notice of several documents from plaintiff's central file in support of one of their arguments. They argue, in the alternative, that the documents are integral to plaintiff's complaint, even though they are not attached to it, and so may properly be considered on a motion to dismiss. The court will discuss these requests when discussing the substantive portion of defendants' motion to dismiss to which these documents relate.
Plaintiff's fourteen page opposition to the motion is supported by 399 pages of exhibits; even if these documents were properly considered in opposition to a motion to dismiss, plaintiff has done little to explain the relationship of the documents to his opposition. He has not suggested, for example, that any of these documents have been incorporated by reference into the complaint or that they are otherwise properly subject to judicial notice. Plaintiff is cautioned that should he continue to file lengthy documents with little or no bearing on the issues, he may be subject to sanctions, including filing restrictions or dismissal of the action.
III. First Amendment And RLUIPA
As part of the first claim, plaintiff alleges that in December, 2007, while he and two other Muslim inmates were praying in the back of their dormitory, defendant Hixson told them to "break it up." Plaintiff finished his prayer and then went to ask defendant Hixson not to interrupt their prayers. Complaint (Compl.) at 5, 6.*fn1 He also claims that in May, 2008, defendant Hixson said plaintiff was out of bounds and threatened to take plaintiff to the program office, which caused him to miss morning prayers. Compl. at 6. Plaintiff alleges that these encounters violated his First Amendment right to practice his religion and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a) ( RLUIPA).
It is true that prisoners do not lose all rights to free exercise of religion upon incarceration, but to state a claim for a violation of that right, an inmate must allege that a sincerely held belief, rooted in religious practice, has been burdened by state action. Cruz v. Beto, 405 U.S. 319, (1972); Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008). In order to state a claim for relief under RLUIPA, plaintiff must allege that the exercise of his religion has been "substantially burdened." 42 U.S.C. § 2000cc-1; Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). Plaintiff alleges despite defendant Hixson's order to "break up" his prayers, he nonetheless was able to finish his praying. This claim does not show that plaintiff's right to practice his religion was burdened by defendant Hixson's action in December, 2007. To the extent that these allegations give context to plaintiff's later claim that his grievance against Hixson stemming from the incident gave rise to a series of retaliatory actions, they may retain its relevance to this action.
Much the same can be said for the allegation that on one occasion plaintiff's morning prayer was made unavailable by defendant Hixon as plaintiff was out of bounds at the time and the administrative sequellae caused delay. In order to be a "substantial burden" on the practice of religion, the act, or acts, must be "'oppressive' to a 'significantly great extent.'" Warsoldier v. Woodford, 418 F.32d 989, 995 (9th Cir. 2005). Whether misguided or not, the administrative ...