The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANTS' MOTIONS TO DISMISS
(Doc. Nos. 56, 60, & 86.)
Presently before the Court is Magistrate Judge Louisa S. Porter's report and recommendation (R&R) advising this Court to grant two motions to dismiss. (Doc. No. 86 (R&R).) Also before the Court are Plaintiff's objections to the R&R (Doc. No. 89 (Objections)) and Defendants' response (Doc. No. 93 (Resp.)). After consideration, the Court ADOPTS the R&R and GRANTS both motions to dismiss.
Plaintiff Anthony Dawkins, a state prisoner proceeding pro se, filed a third amended complaint (TAC) pursuant to 42 U.S.C. § 1983 alleging eight separate claims against twenty Defendants for violations of his First, Eighth, and Fourteenth Amendment rights. (R&R 1.) Since the TAC was filed, the wheat has been separated from the chaff. The Court sua sponte dismissed Claims two, four, seven, and eight in an Order dated March 17, 2010. (Doc. No. 28.) Only Claims one, three, five, and six remain. (Id.) Furthermore, of the twenty defendants, only Defendants Butler, Gonzalez, Stratton, Ries, Moschetti, Trujillo, Guevara, Mejia, Ibarra, and Duran remain.*fn1
Plaintiff's first claim alleges that Defendants Trujillo, Villa, and Allen violated the Eighth Amendment by using excessive force. (Id.) In Claim Three, Plaintiff contends that Defendant Moschetti retaliated against Plaintiff for exercising his First Amendment right to seek redress. (Id.) In Claim Five, Plaintiff contends Defendants violated his Eighth and Fourteenth Amendment rights by falsifying reports to place Plaintiff in administrative segregation. (Id.) And in Claim Six, Plaintiff alleges violations of his First Amendment and due process rights.
On June 18, 2010, Defendants Butler, Gonzalez, Stratton, Ries, Moschetti, Trujillo, Guevara , Mejia, and Ibarra filed a motion to dismiss. (Doc. No. 56.) One month later, Defendant Duran filed a motion to dismiss and also joined in the previous motion. (Doc. No. 60.) After consideration, Judge Porter issued an R&R recommending this Court grant Defendants' motions. Plaintiff timely objected, and Defendants responded-one day late.
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). In the absence of a timely objection, however, "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. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
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 pursuant to 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 ...