The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), filed on December 8, 2010, to which plaintiff filed an opposition, after which defendants filed a reply.
Plaintiff claims that defendants Ira Book, Jewish chaplain at California State Prison-Sacramento (CSP-SAC); Marc Elia, CSP-SAC Community Partnership Manager; CSPSAC Warden James Walker and Chief of Inmate Appeals N. Grannis deprived him of his First Amendment right to the free exercise of his Muslim religion (which he denominates "Qurancy") by denying him access to the Jewish kosher diet. Complaint, pp. 1-8. Defendant Book denied plaintiff's request to take part in the Jewish diet program on March 4, 2008. Id. at 4 & Exhibit (Exh.) A. On May 20, 2008, defendant Elia denied plaintiff's March 21, 2008 appeal of defendant Book's denial of access to a kosher diet. Id. & Exhs. B & C. On July 10, 2008, defendant Walker denied plaintiff's June 5, 2008, second level appeal. Id. at 5 & Exhs. B & D. Plaintiff's July 20, 2008 appeal was denied at the third-level, by a C. Hall on defendant Grannis' behalf, on November 23, 2008. Id. & Exhs. B & E.
Thereafter, on December 23, 2008, plaintiff filed a state habeas corpus petition, challenging the denial of his access to the kosher diet program, seeking injunctive and declaratory relief. Complaint, pp. 5-6 & Exh. F. Ultimately, following, inter alia, an evidentiary hearing, the state superior court judge, on January 19, 2010, ordered the California Department of Corrections and Rehabilitation (CDCR) to provide plaintiff the kosher diet available for Jewish inmates until such time as the to-be-implemented religious diet program became available to him or the court issued a further order otherwise. Id., at 5-6 & Exh. K, pp. 135-137. The CDCR complied with the order as of January 28, 2010, and plaintiff has been receiving the kosher diet but he fears the state court judge might eventually determine his claim is moot. Id. at 7. Plaintiff seeks money, including punitive damages, as well as injunctive relief. Id. at 7-8.
Defendants move for dismissal on the grounds, under Fed. R. Civ. P. 12(b)(6), that: 1) plaintiff failed to state a claim upon which relief can be granted and 2) the facts alleged in the complaint show defendants are entitled to qualified immunity. MTD, pp. 1-10.
Legal Standard for Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion[of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...