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Jim Davis v. Larry Smalls

February 25, 2011


The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge


Presently before the Court is Magistrate Judge Louisa S. Porter's report and recommendation (R&R) advising this Court to grant Respondent's motion to dismiss. (Doc. No. 16 (R&R).) Also before the Court are Petitioner's objections to the R&R. (Doc. No. 17 (Objections).) Having considered the parties' arguments and the law, the Court ADOPTS the R&R and GRANTS Respondent's motion to dismiss.


Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus on December 28, 2009. (Doc. No. 1 (Pet.).) His claim stems from an institutional search of his prison cell during which a sharp metal weapon was found inside a light fixture. (R&R 1--2.) As a result, Petitioner received a California Department of Corrections and Rehabilitation (CDCR) rules violation for possessing dangerous contraband. (Id. at 2.) At a hearing before Lieutenant G. W. Stratton for adjudication of the violation, Petitioner pleaded not guilty, claiming he was "not aware of the item . . . in the cell light at all." (Id.) He ultimately was found guilty of possessing dangerous contraband and assessed a forfeiture of 120 days of good time credits. (Id.) Petitioner also lost his prison job and certain telephone and yard privileges. (Doc. No. 14 (Opp'n), at 1--2.)

Having exhausted his administrative and state remedies, Petitioner filed the instant petition, alleging that the disciplinary adjudication violated his due process rights. (Pet.) On May 6, 2010, Respondent filed a motion to dismiss the petition, contending that Petitioner failed to allege a cognizable claim for federal habeas relief. (Doc. No. 12.) Petitioner filed an opposition to the motion on May 12, 2010. (Opp'n.) On December 15, 2010, Magistrate Judge Porter issued an R&R advising this Court to grant Respondent's motion. (R&R.) Plaintiff objected to the R&R on December 6, 2010. (Objections.)


1. Review of the Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's report and recommendation. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).

2. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a party to assert by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally known as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim" showing that the pleader is entitled to relief. Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, - U.S.- , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' for his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not 'show[n]'- 'that the pleader is entitled to relief.'" Id.

When a court grants a motion to dismiss, the court should also grant leave to amend "'unless [it] determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, the Court may deny leave to amend if amendment would be futile. See id.; Schreiber Distrib., 806 F.2d at 1401.

3. Cognizable Claim for Federal Relief

Under federal law, a prisoner seeking relief on complaints related to imprisonment may file a petition for habeas corpus under 28 U.S.C. § 2254 or a complaint under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 579 (2006). Under Ninth Circuit law, "habeas jurisdiction is proper where a challenge to ...

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