The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATIONS
Plaintiff Gregory Lee Gray ("Plaintiff"), a state prisoner appearing pro se and in forma pauperis, initiated this action under 42 U.S.C. § 1983 on June 26, 2008, claiming his civil rights were violated in June 2007 when he was housed at R.J. Donovan State Prison. (Doc. No. 1, "Compl.") This court granted in part and denied in part the motion to dismiss filed by defendants Hernandez, Marrero, Sterling, and Peterson. (Doc. No. 38, "Order.") On April 14, 2010, Plaintiff filed a First Amended Complaint based on the alleged civil rights violations at R.J. Donovan State Prison in June 2007. (Doc. No. 80, "FAC.") Defendants move to dismiss Plaintiff's claims in his FAC pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Doc. No. 81, "Motion.")
On November 30, 2010, Judge Gallo issued a Report and Recommendation (Doc. No. 101, "R&R.") recommending that this court grant the Motion with regard to Plaintiff's Eighth and Fourteenth Amendment claims.*fn1 Plaintiff filed objections to the R&R. (Doc. No. 104, "Obj.")
Having carefully considered the thorough and thoughtful R&R, incorporated herein, the record before the court, Plaintiff's objections, and the applicable authorities, the court wholly ADOPTS THE R&R, except that the court dismisses all claims against Defendant Hernandez with prejudice. //
While housed at Donovan State Prison, Plaintiff filed a grievance against defendants Marrero, Sterling, and Peterson, prison employees, claiming they denied him access to the law library and the courts. (FAC at 2.) After exhausting his administrative grievance and subsequent appeals, Plaintiff informed defendants Sterling and Peterson that he intended to sue them for $1666.20 in Small Claims Court, but was willing to settle for $200. (Id.) Sterling and Peterson filed charges against Plaintiff for extortion in violation of California Code of Regulations ("CCR") § 3013. (Id.) On June 18, 2007, during the investigation and review of the incident, Plaintiff was placed in Administrative Segregation ("Ad Seg"). (FAC at 3.) Plaintiff claimed that, while in Ad Seg, he became sick from the food and the doctors refused to provide him medical care. (Compl. at 3.) After he was placed in Ad Seg, Plaintiff lost his job with PIA Industry Laundry. (FAC at 7.) While he was in Ad Seg, Plaintiff filed his Small Claims suit. (FAC at 3.)
Plaintiff was found not guilty of the extortion violation on July 29, 2007, and he was released from Ad Seg on August 22, 2007. (FAC at 2-3.) He was transferred out of Donovan on October 2, 2007, first to Mule Creek State Prison and then to High Desert State Prison. (FAC at 3.)
Based on these facts and his belief that Defendants placed Plaintiff in Ad Seg to prevent him from bringing a Small Claims suit, Plaintiff filed a complaint alleging First Amendment retaliation, Eighth Amendment cruel and unusual punishment, and Fourteenth Amendment violation of due process. (Compl. at 3.) Plaintiff's complaint included claims against Hernandez, warden of Donovan State Prison; Marrero, Captain of Facility 3 Yard; Sterling, Library Technical Assistant; and Peterson, Senior Law Librarian, in both their individual and official capacities. (Compl. at 2.) Plaintiff sought injunctive relief and actual and punitive damages. (Compl. at 7.)
Defendants filed a motion to dismiss the Complaint. (Doc. No. 14.) On August 27, 2009, the court issued an order adopting the R&R, granting in part and denying in part the motion to dismiss.
(Order at 11.) The order denied the Defendants' motion to dismiss with regard to Plaintiff's First Amendment claim, but granted the motion without prejudice with regard to Plaintiff's Eighth and Fourteenth Amendment claims, his claims against Hernandez, and his claims for injunctive relief. (Id.) The court dismissed with prejudice Plaintiff's claims against all Defendants in their official capacities. (Id.)
On April 14, 2010, Plaintiff filed his FAC, claiming that Defendants violated his constitutional rights under the First, Eighth, and Fourteenth Amendments. (FAC at 7-16.) He sues Defendants in their individual and official capacities, and seeks injunctive relief and actual and punitive damages. (FAC at 1.) //
The court reviews a magistrate judge's R&R according to the standards set forth in Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of the report to which a party objects. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980). "A judge of the court 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).
Rule 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). In evaluating a 12(b)(6) motion, the court must accept the complaint's allegations as true, and construe them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995). The court may not dismiss the complaint if it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft, 129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 129 S.Ct. at 1949. The court should grant 12(b)(6) relief only where the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Plaintiff moved for default judgment because Defendants failed to respond to the Complaint within the 20 days allowed by Rule 12(a). As this court noted in its Order following the motion to dismiss the Complaint, Defendants' response was timely filed because they had waived service of process, resulting in a 60-day reply period under Rules 4(d)(3) and 12(a)(I)(A)(ii). (Order at 3.)
B. First Amendment Retaliation Claim
The R&R notes that Plaintiff included a First Amendment retaliation claim in his FAC. (R&R at 4.) However, the R&R does not address this claim because of this court's order denying Defendants' motion to dismiss the same First Amendment claim in Plaintiff's Complaint. (R&R at 5, n. 5.) Plaintiff's First Amendment claim remains viable.
C. Eighth Amendment Claim for Cruel and Unusual Punishment
Plaintiff contends that Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment by not sanitizing food serving tables, serving him poisonous food, and failing to provide him with medical care. (FAC at 9.) The R&R recommends that this court grant Defendants' motion to dismiss that claim because Plaintiff failed to allege: (1) any act or omission by Defendants resulting in a deprivation of Plaintiff's basic needs that would constitute a violation of the Eighth Amendment, (2) that Defendants knew of an excessive risk to Plaintiff's health or safety, or
(3) that Defendants were deliberately indifferent to his health and safety. (R&R at 13.) Plaintiff objects to that finding, arguing he did properly assert an Eighth Amendment violation by claiming:
(1) Defendants failed to sterilize the food area, resulting in him eating "poisonous" food, (2) "the doctors" failed to give him medical treatment, and (3) ...