The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION (ECF Nos. 27 & 57.)
On November 23, 2010, Plaintiff filed his first amended complaint. (FAC, ECF No. 13.) The core cause of action asserts that Defendants violated Plaintiff's Eighth Amendment rights by causing other inmates to rape Plaintiff. (FAC 3--4.) The other cause of action builds on the rape allegations and asserts that Defendants violated Plaintiff's Fifth and Fourteenth Amendment rights by covering up the rape. (Id.5.)
Defendants filed a motion to dismiss and motion to strike on January 10, 2011. After considering the briefing, Magistrate Judge Peter C. Lewis issued a Report and Recommendation recommending this Court grant Defendants' motion to dismiss and deny Defendants' motion to strike. (R&R, ECF No. 57.) Plaintiff timely filed his objections to the R&R. (Objection, ECF No. ##.) Defendants replied. (Reply, ECF No. 56.) After consideration, this Court ADOPTS the R&R, GRANTS Defendants' motion to dismiss, and DENIES Defendants' motion to strike. ///
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).
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.
The causes of action in Plaintiff's FAC are based on his rape allegations. And in that context, Judge Lewis' R&R found that Plaintiff's claims failed because they were unexhausted. Judge Lewis recognized, however, that the FAC could also be interpreted to include 28 U.S.C. § 1983 claims regarding a failure to award Plaintiff his own prison cell. In that context, Judge Lewis found that Plaintiff failed to state a cause of action.
I. Exhaustion of the Rape Claims
Judge Lewis found that Plaintiff failed to exhaust administrative remedies related to his rape claims and that Plaintiff was not excused from exhausting said remedies. (R&R 5--7.) As a result, Judge Lewis recommended that these claims be dismissed without prejudice. (Id. 9.)
Plaintiff objects on the basis that he should be excused from exhausting his administrative remedies. (Objection 6--15.) Plaintiff argues first that he did not exhaust his administrative remedies because the prison prevented him from doing so. (Id. 7--11.) Alternatively, Plaintiff argues that the prison failed to comply ...