ORDER G R A N T I N G , I N P A R T , DEFENDANTS' MOTION TO DISMISS AND DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 10)
AMENDED COMPLAINT DUE WITHIN/ THIRTY DAYS
Plaintiff Alfred Hernandez ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his Complaint in Kings County Superior Court against Defendants Enenmoh, Villasenor, Gonzales, Morris, Denia, Miller, Crum, Walker, Englert, and Schaper. (ECF No. 1.) On March 8, 2011, Defendants removed the action to federal court. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction on March 18, 2011 and Defendants also consented on March 14, 2011. (ECF Nos. 8 & 7.) Plaintiff's Complaint has not yet been screened by this Court.
On March 30, 2011, Defendants Enenmoh, Crum, Morris, Villasenor, Englert filed a Motion to Dismiss for failure to state a claim.*fn1 (ECF No. 10.) Plaintiff failed to file an opposition or otherwise respond to the Motion.
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which 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 (2007)); 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; Moss, 572 F.3d at 969.
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 at 1949 (citing Twombly at 555), and 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).
Defendants argue that all Defendants are entitled to Eleventh Amendment immunity; that Plaintiff failed to state a Fourteenth Amendment claim; that, as to Defendants Enenmoh and Crum, Plaintiff cannot prove proximate cause because there is no supervisory liability or liability for treatment of appeals; that, as to Defendants Morris and Villasenor, Plaintiff failed to prove deliberate indifference to his medical need in violation of the Eighth Amendment; that Plaintiff failed to prove any claims against Defendant Englert as he is not named in Plaintiff's statement of the case; and that Plaintiff has failed to state any claims as he does not allege specific facts to show any violations by any named Defendants.
A. Eleventh Amendment Immunity
Defendants argue that they are entitled to immunity under the Eleventh Amendment because Plaintiff has not established a constitutional violation and because reasonable correctional officers would not have believed that following established prison policies violationed Plaintiff's rights.
"The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials in their official capacities." Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). "Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 25; Suever v. Connell, Nos. 08-15884, 08-16161, 2009 WL 2606235, *12 (9th Cir. Aug. 26, 2009).
Here, Plaintiff does not allege that he is bringing suit against any Defendant in their official capacity. In fact, Plaintiff states that each Defendant is sued in their individual capacity. (ECF No. 1-1, p. 10.) Accordingly, the Court rejects Defendants' argument that they are entitled to dismissal of the constitutional claims against them based on Eleventh Amendment immunity.
Defendants argue that Plaintiff failed to state a violation under the Fourteenth Amendment. Defendants believe that Plaintiff is alleging that Defendants violated his due process rights by failing to provide adequate medical care. The Court disagrees with Defendants' conclusion. In his Complaint, Plaintiff alleges that he was denied due process under the Fourteenth Amendment; however, he does not state any facts related to this argument. It appears to the Court that Plaintiff was attempting a due process claim as to the processing of his grievances, which is addressed in the following section.
C. Defendants Enenmoh & Crum
Defendants Enenmoh and Crum argue that they should be dismissed from the Complaint because Plaintiff cannot prove proximate cause as they did not participate in the alleged violations as currently described by Plaintiff.*fn2
In his Complaint, Plaintiff alleges that, on April 8, 2010, Defendant Crum refused to process Plaintiff's appeal prolonging his suffering. Plaintiff does not name Enenmoh in his statement of the case. However, the Court notes that Enenmoh appears to have partially granted one of Plaintiff's appeals. (ECF No. 1-2, pp. 20-21.)
It appears that Plaintiff is alleging that Defendants Enenmoh and Crum mishandled/delayed/wrongly denied his inmate appeals.
Defendants' actions in responding to Plaintiff's appeals alone cannot give rise to any claims for relief under Section 1983 for violation of due process. "[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). "Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez, 568 ...