The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By Order, filed on May 10, 2011, this court vacated a number of submitted motions from its calendar pending the Ninth Circuit's resolution of plaintiff's interlocutory appeal, at which point the motions were to be re-noticed by this court. In a mandate filed in this court's case docket on July 28, 2011, the Ninth Circuit summarily affirmed the district court's denial of plaintiff [appellant's] request for injunctive relief. Therefore, the court now re-notices the following previously submitted but vacated motions and addresses them: 1) defendants Stocker and Grannis' motion to dismiss, pursuant to Fed. R. Civ. 12(b)(6), filed on September 23, 2010, to which plaintiff filed his opposition on October 6, 2010, after which a reply was filed by these defendants on October 14, 2010; plaintiff thereafter filed a response to the reply (or a surreply), on October 25, 2010, a filing not contemplated within the Federal Rules of Civil Procedure or the Local Rules which will be disregarded; 2) plaintiff's motion pursuant to Fed. R. Civ. P. 50, filed on September 29, 2010; 3) plaintiff's motions for default judgment, filed on October 6, 2010, as to defendant Clayton, and on November 3, 2010, as to defendants Kansier and Sahota; 4) defendants Clayton, Kansier and Sahota's motion to dismiss, pursuant to Rule 12(b)(6), filed on December 13, 2010, to which plaintiff filed an opposition on January 3, 2011, after which these defendants filed their reply, following which plaintiff filed a response or surreply, on January 21, 2011, which will be disregarded as not in compliance with the applicable rules of motion practice; 5) defendants Clayton, Kansier and Sahota's January 26, 2011, motion to strike plaintiff's January 21, 2011 "surreply" to their motion to dismiss,*fn1 to which no response was filed, which will be denied as moot.
Plaintiff's Miscellaneous Motions
Plaintiff's Motion pursuant to Rule 50
Essentially, plaintiff seeks judgment as a matter of law, premised on his objections to two requests for extension of time made by defendants, arguing that they have defaulted on their obligation to respond to the second amended complaint within 60 days. A motion under Fed. R. Civ. P. 50 is both premature and inapposite in this context. McSherry v. City of Long Beach, 423 F.3d 1015, 1019, 1024-25 (9th Cir. 2005)(district court judgment reversed where court inappropriately granted Rule 50 motion pre-trial before evidence presented to jury); Summers v. Delta Air Lines, Inc., 508 F/3d 923, 928 (9th Cir. 2007)(a party with relevant, admissible witness testimony to present at trial precludes the court under Rule 50(a) from requiring such testimony be instead given through an offer of proof). Moreover, the court granted defendants' first request for a time extension and modified the second before granting it, and in any case, the defendants who sought the extension filed their response well before the second time extension period expired. Plaintiff's putative Rule 50 motion will be denied as wholly frivolous.
Plaintiff's Motions for Default
Plaintiff's motion for default as to defendant Clayton contends that this defendant exceeded the 60 days for filing a Rule 12 motion (or answer) in response to his second amended complaint. There is some confusion in the docket as to how and when defendant Clayton was served. An executed waiver of service is signed by defendant R. Clayton and dated October 8, 2010. See docket # 53. However, the process receipt indicates that multiple efforts to mail the waiver of service in June of 2010 were unsuccessful and, on October 4, 2010, process was assigned to be personally served and, on October 13, 2010, defendant Clayton was personally served. Id. In any case, the waiver of service of summons indicating Clayton had 60 days to respond to the action, was updated to show the time for him to respond ran from October 4, 2010. Assuming defendant Clayton was entitled to the 60 days from October 4, 2010, despite contra-indications of personal service on October 13, 2010, this defendant should have filed his response by December 6, 2010 (adding three days under Fed. R. Civ. P. 6(d)). His motion to dismiss, which included defendants Kansier and Sahota, was filed on December 13, 2010. Docket # 53 & # 61. If the 60 days were deemed to run from the date indicated for personal service, October 13, 2010, the response would be timely. Finally, in the docket of this case, the executed waiver, filed on October 22, 2010, the text entry, which appears to be incorrect, indicates defendant Clayton's answer to be due by December 21, 2010. Docket # 53. Because, in any event, any belatedness is not more than de minimis, the court will deny the motion for entry of default as to defendant Clayton.
As to plaintiff's motion for default with regard to defendants Kansier and Sahota, although waivers of service of summons were initially returned unexecuted for these individuals, this court granted plaintiff's request for judicial intervention and these defendants ultimately waived service of process on December 2, 2010, had 60 days from November 12, 2010, to file a response and filed their motion to dismiss on December 13, 2010; thus, they were ultimately served and have appeared timely in this action. See Docket # 46, # 61 & # 62. Plaintiff's motion for a default judgment as to these defendants will be denied.
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 v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Because the allegations in plaintiff's complaint intermingle all the remaining defendants so fully, and both motions to dismiss are made pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted, the court will consider the motions together. See Notices of First and Second Motions to Dismiss (docket # 41 & # 61). As to defendants Stocker, Grannis, and Sahota, defendants contend that plaintiff's allegations against them center solely on their participation in the grievance process with regard to a number of plaintiff's appeals regarding his medical condition. Memoranda of Points and Authorities, hereafter referred to, when referencing the first motion to dismiss (docket # 41 -1), brought on behalf of defendants Stocker and Grannis, as FMTD, and, when referring to the second motion to dismiss (docket # 61-1), ...