FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING (Doc. 16) UNENUMERATED 12(b) MOTION AND GRANTING IN PART THE 12(b)(6) MOTION TO DISMISS
OBJECTIONS DUE WITHIN THIRTY DAYS Findings and Recommendations - Defendant's 12(b)(6) Motion
Plaintiff Thornell Brown ("Plaintiff") is a state prisoner proceeding in forma pauperis ("IFP") in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed May 4, 2009, against Defendants Williams and Gonzales ("Defendants") for use of excessive force and subjecting Plaintiff to unconstitutional conditions of confinement following the use of force on May 23, 2005, in violation of the Eighth Amendment. (Doc. 1, Comp.; Doc. 8, Cog Claim Ord.).
On May 6, 2010, Defendants filed a request for judicial notice, an unenumerated 12(b) motion to dismiss pursuant to 28 U.S.C. §1915(g) and a 12(b)(6) motion to dismiss on grounds of qualified immunity. (Docs. 16, 17). On December 20, 2010, Plaintiff filed an opposition to Defendants' motions. (Doc. 32). Defendants have not submitted a reply within the time allotted under local rules. The matter is submitted pursuant to Local Rule 230(1).
II. Motion to Dismiss Standard
'The focus of any Rule 12(b)(6) dismissal . . . is the complaint.' Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (quoting Schneider v. Cal. Dep't. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 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). "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); 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. 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. Additionally, 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).
III. Three Strikes Pursuant to 28 U.S.C. §1915(g)
Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides that:
[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Defendants request the Court take judicial notice of dispositions of civil cases filed by Plaintiff. (Doc. 17). "A court shall take judicial notice if requested by a party and supplied with the necessary information." Fed. R. Evid. 201(d). The Court takes judicial notice of Plaintiff's court records in previous cases. Fed. R. Evid. 201(d); see United States v. Howard, 381 F.3d 873, 876 n.1 (2004). Defendants argue that the following cases constitute as strikes: Brown v. Galaza, et al., 1:98-cv-05156-AWI-HGB (E.D. Cal. dismissed July 31, 2000); Brown v. Valenzuela, 2:07-cv-02842-ODW-PJW (C.D. Cal. dismissed June 15, 2007); Brown v. Renteria, 2:02-cv-04625-SVW-PJW, 2006 WL 4389588 (C.D. Cal., dismissed November 17, 2006); Brown v. Gandola, 2:03-cv-05867-SVW-PJW (C.D. Cal., dismissed July 19, 2007); Brown v. Macias, 2:04-cv-05384-SVW-PJW (C.D. Cal., dismissed August 10, 2007); Brown v. Macias, No. 05-55782 (9th Cir., dismissed August 9, 2005).
A review of the record of actions filed by Plaintiff in the United States District Court reveals that Plaintiff filed two actions that clearly count as "strikes" pursuant to § 1915(g). See Brown v. Galaza, et al., 1:98-cv-05156-AWI-HGB (E.D. Cal.) (dismissed July 31, 2000, for failure to state a claim, Doc. 25); Brown v. Valenzuela, 2:07-cv-02842-ODW-PJW (C.D. Cal.) (dismissed June 15, 2007 for failure to state a claim, Docs. 5, 8). However, "[n]ot all unsuccessful cases qualify as a strike under § 1915(g)." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005); see O'Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir. 2008). Only "after careful evaluation of the order dismissing an action, and other relevant information, [does the Court] determine that the action was dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).
In Renteria, Plaintiff had stated a claim, however, the court granted the motion for summary judgment upon finding that the amount of force was not excessive given the circumstances. Brown v. Renteria, 2:02-cv-04625-SVW-PJW (Doc. 128). Therefore, the Court finds that Renteria does not count as a strike. Further, the Court finds that Brown v. Macias does not count as a strike. See Brown v. Macias, 2:04-cv-05384-SVW-PJW, (C.D. Cal., dismissed August 10, 2007). In Brown v. Macias: 1) two claims were dismissed for failure to state a claim; 2) one due process claim was not cognizable under section 1983 since it necessarily challenged the length of Plaintiff's sentence; 3) one claim was dismissed upon a finding that there was due process (Defendants do not explain why this claim should be deemed as frivolous, malicious or failing to state a claim); 4) Plaintiff's retaliation claim was dismissed because Plaintiff failed to establish that his First Amendment Rights were chilled (Defendants do not explain why this claim should be deemed frivolous, malicious or failing to state a claim); 5) one Eighth Amendment claim was transferred to another case; and 6) another Eighth Amendment claim was denied because there was no evidence that Plaintiff was placed in the Secured Housing Unit ("SHU") where the defendants worked. Brown v. Macias, 2:04-cv-05384-SVW-PJW (Doc. 82). Although on page fourteen ...