The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER: (1) SUA SPONTE DISMISSING DEFENDANTS SCHOENFELDER; PURSUANT TO 28 U.S.C. § 1915(e)(2); AND CORRECTIONS CORPORATION OF (2) GRANTING IN PART AND DENYING IN PART DEFENDANTSLAWRENCE AND CCA'S MOTION TO DISMISS FIRST AMENDED COMPLAINT [ECF Nos. 16, 19]
On March 1, 2011, while housed at the San Diego Correctional Facility and in the custody of the Department of Homeland Security, Omar Yassin ("Plaintiff") filed his original Complaint [ECF No. 1]. In addition, Plaintiff filed a Motion to Proceed in forma pauperis ("IFP"), along with a Motion to Appoint Counsel [ECF Nos. 2, 3]. The Court granted Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), denied his Motion to Appoint counsel without prejudice and directed the United States Marshal to effect service of the Complaint. See Apr. 4, 2011 Order at 4-5. Several of the named Defendants filed a Motion to Dismiss the Complaint on June 17, 2011 [ECF No. 11]. Instead of filing an Opposition, Plaintiff chose to file an Amended Complaint [ECF No. 13]. Defendants withdrew their motion in light of the filing of the Amended Complaint.
In Plaintiff's First Amended Complaint ("FAC"), the only named Defendants are Fred Lawrence, the Corrections Corporation of America and Does 1 through 20. (See FAC at 1, 2.) These Defendants have filed a Motion to Dismiss Plaintiff's First Amended Complaint [ECF Nos. 16, 19]. Plaintiff has filed two Oppositions to which Defendants have filed a Reply [ECF Nos. 25, 27, 28].
The Court has determined that Defendants' Motions are suitable for disposition upon the papers without oral argument and that no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).
As an initial matter, the Court notes that Plaintiff has failed to rename Defendants Schoenfelder, Soria, Smith, Mata, Berry, All CCA Employees and Fuentes in his First Amended Complaint. Thus, the claims against these Defendants have been waived and these Defendants are DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
III. PLAINTIFF'S FACTUAL ALLEGATIONS
Plaintiff was initially detained at the Corrections Corporation of America ("CCA") on December 20, 2010 "for a number of months." (FAC at ¶ 13.) Immediately upon arrival at the facility, "Plaintiff requested a halal meal" but was told that "one would not be provided." (Id. at ¶14.) Plaintiff initially appealed this denial verbally but when that avenue provided no results, Plaintiff began to file written grievances. (Id.). In response to his final grievance, Plaintiff alleges that Defendant Warden came to visit him and stated "look, the bottom line is that it's all about money" and he did not have enough funds in his budget to purchase "halal meals for 300 Muslin inmates" that are in the custody of the CCA. (Id. at ¶ 17.) Plaintiff pointed out to Defendant Lawrence that CCA provides kosher meals to Jewish inmates but Lawrence responded "that is just the way it is, sorry." (Id.)
IV. DEFENDANTS'MOTION TO DISMISS
A. FED.R.CIV.P. 12(b)(6) Standard of Review
A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted).
A motion to dismiss should be granted if plaintiff fails to proffer "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 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." Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009) .
In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines, 404 U.S. at 519-20. Thus, where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi, 839 F.2d at 623.
Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).
B. Claims against Defendant CCA
First, Defendant CCA moves to dismiss the action against them pursuant to Federal Rules of Civil Procedure 12(b)(2) for "lack of personal jurisdiction because no Summons was ever served upon CCA requiring any response to the Amended Complaint." (Defs.' Memo. of Ps & As in Support of Mtn to Dismiss at 11.)
"The plaintiff is responsible for having the summons and complaint served within [120 days of filing] and must furnish the necessary copies to the person who makes the service." FED.R.CIV.P. 4(c)(1). "In the absence of service of process (or waiver of service by the defendant)," under FED.R.CIV.P. 4, "a court ordinarily may not exercise power over a party the complaint names as a defendant." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999); see also Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) ("Before a ... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied."); Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) ("[S]ervice of summons is the procedure by which a court ... asserts jurisdiction over the party served.").
First, a review of the Court's docket indicates that a summons was not issued as to Defendant CCA. Second, Plaintiff makes no argument in his Oppositions to rebut Defendant CCA's showing that they were never properly served with either Plaintiff's original Complaint or his First Amended Complaint. Accordingly, the Court hereby DISMISSES all claims against purported Defendant CCA pursuant to FED.R.CIV.P. ...