ORDER AND FINDINGS & RECOMMENDATIONS
This case came before the court on January 21, 2011, for hearing of defendant's motions to dismiss plaintiff's complaint and to declare plaintiff a vexatious litigant. Kristina M. Hall, Esq. appeared for the moving party. Plaintiff, proceeding pro se, appeared on his own behalf. Oral argument was heard, and the motions were taken under submission.
Upon consideration of all written materials filed in connection with defendant's motions, the parties' arguments at the hearing, and the entire file, the undersigned recommends that defendant's motion to dismiss be granted and defendant's motion to declare plaintiff a vexatious litigant be denied without prejudice.
Plaintiff commenced this action by filing a complaint in this court on November 2, 2010. (Doc. No. 1.) Plaintiff paid the required filing fee, and a summons was issued as to defendant Plumas County. On December 7, 2010, defendant filed the motions now before the court. (Doc. Nos. 9 & 10.) Plaintiff filed timely opposition to defendant's motion to dismiss but did not file opposition to defendant's motion to declare plaintiff a vexatious litigant. (Doc. No. 21.) On January 14, 2011, defendant filed a reply to plaintiff's opposition (Doc. No. 24) and a separate reply regarding plaintiff's failure to respond to the motion to declare him a vexatious litigant. (Doc. No. 25.)
On various dates prior to the hearing of defendant's motions on January 21, 2011, plaintiff filed various motions. Those motions filed by plaintiff included: a motion for injunction (Doc. No. 6), which was denied by order filed December 13, 2010 (Doc. No. 14.); a motion for issuance of subpoenas (Doc. No. 18) and a motion for temporary injunction (Doc. No. 20), both of which were denied by order filed December 23, 2010 (Doc. No. 22); and a motion to recuse the assigned magistrate judge (Doc. No. 23), which was denied by order filed January 18, 2011 (Doc. No. 26).
After the hearing of defendant's motions on January 21, 2011, plaintiff filed a motion for sanctions (Doc. No. 28), which was denied by order filed April 29, 2011 (Doc. No. 29); and two motions for an expedited ruling on defendant's motion to dismiss (Doc. Nos. 31 & 32), which were denied by order filed June 17, 2011 (Doc. No. 37).
Plaintiff alleges that his suit against Plumas County arises under the Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. §§ 1983, 1985 and 1988. (Compl. (Doc. No. 1) at 1.) Plaintiff asserts jurisdiction predicated on 28 U.S.C. §§ 1331 and 1343, 18 U.S.C. §§ 241 and 242, and 42 U.S.C. § 14141. (Id.)
Plaintiff's single cause of action is that defendant Plumas County has had a practice and policy of violating plaintiff's constitutional rights since September of 2000 when the practice and policy commenced with the criminal prosecution of plaintiff in Plumas County case 00-26978. Plaintiff alleges in a highly conclusory manner that this practice and policy caused county officers and employees acting under color of state law to violate plaintiff's constitutional rights in case 00-26978, that the practice and policy has continued to cause county officers and employees to violate plaintiff's constitutional rights without interruption for the past decade, and that the practice and policy will continue to cause county officers and employees to violate plaintiff's constitutional rights into the future, absent a meaningful remedy. (Id. at 1-2.)
Plaintiff alleges virtually no facts in his brief two-page complaint but rather cites documents attached thereto and asserts that proof is available on his website. (Id. at 2.) Plaintiff seeks damages in the amount of $6,700,000 for pain, suffering, humiliation, emotional distress, and financial loss allegedly arising from defendant's alleged practice and policy of violating his rights, including his wrongful conviction in both 2000 and 2001, his wrongful imprisonment from 2001 to 2003, violation of due process with respect to complaints made by plaintiff from 2004 to 2007, violation of due process with respect to complaints made by plaintiff in 2010, and abridgement of his right to petition in 2010. In addition, plaintiff seeks a permanent injunction against defendant's officers and employees ordering them not to violate plaintiff's constitutional rights in the future. (Id.)
Attached to plaintiff's complaint are (1) a request for judicial notice that does not seek notice of judicially noticeable matters; (2) lengthy witness lists; (3) a declaration in which plaintiff addresses at length his state court criminal proceedings, his first civil suit (CIV S-04-1888 GEB DAD), and various events that occurred on unspecified dates; (4) an "affidavit" in which plaintiff sets forth 383 numbered sentences concerning his arrest, trial, post-trial proceedings, civil suits filed in this court, and complaints submitted to Plumas County and others.*fn1 (Id. at 3-29.)
DEFENDANT'S MOTION TO DISMISS
Defendant seeks dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the general rule is that the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. ...