FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING, IN PART,
DEFENDANTS CATE, DOYLE, AND GIURBINO'S MOTION TO DISMISS
AND DISMISSING ACTION IN ITS ENTIRETY (ECF No. 32) OBJECTIONS DUE WITHIN TWENTY
FINDING AND RECOMMENDATIONS
Plaintiff Reginald D. Miller ("Plaintiff") is a civil detainee proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originally filed this action in state court. Defendant Giurbino removed it to federal court on July 1, 2011. (ECF No. 2.)
Pending before the Court is Defendants Cate, Doyle, and Giurbino's Motion to Dismiss filed August 10, 2011. (ECF No. 32.) Plaintiff filed his response on August 18, 2011, and Defendants replied on August 25, 2011. (ECF Nos. 41 & 46.)
"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 for dismissal of this action based on the following arguments: (1) Defendants are immune from suit for damages in their official capacities; (2) Plaintiff is not entitled to injunctive relief; (3) Plaintiff's claims are not ripe for adjudication and are barred by Heck v. Humphrey, 512 U.S. 477 (1994); (4) Defendants are entitled to qualified immunity; (5) Plaintiff failed to state a constitutional claim for a right to an administrative appeal process; (6) Plaintiff does not have standing for other persons; (7) the Court should abstain from ruling, and dismiss the action, pursuant to the Colorado Doctrine; and (8) Plaintiff failed to state a constitutional claim for violation of regulations or statutes.
In response, Plaintiff argues that he does not believe the removal to federal court was proper and that all subsequent filings made by all Defendants are untimely. Plaintiff reiterates the arguments made in his Complaint. Plaintiff states that Defendants are not entitled to qualified immunity, that he is entitled to injunctive relief, that he has a right to appeal decisions made by the CDCR and a right to an administrative appeal process, that this is not a class action lawsuit, that the Colorado Doctrine should not be applied, and that his action is ripe for review.
In their Reply, Defendants basically reiterate their initially arguments.
The Court will address each of Defendants' arguments below.*fn1
A. Ripeness, Heck Bar, and Colorado Doctrine
Unlike in Plaintiff's allegations against Defendants Allenby, Ahlin, Owens, and Sreenivasan, the due process violation here has already occurred and cannot continue to occur as Plaintiff is no longer in Defendants' custody or control. Plaintiff alleges that he was not notified of the SVPA process and attributes responsibility for this failure to Defendants Cate, Giurbino, and Doyle. Receiving this notice was a one time occurrence which also means that it was a one time violation. Thus, the Court finds that this claim against these Defendants is ripe. See Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) ("[t]he core question is whether the agency has completed its decision making process, and whether the result of the process is one that will directly affect the parties.").
Defendant claims that Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a state prisoner could not bring a suit for damages under Section 1983 that would render his conviction or sentence invalid, and such claims are not cognizable, stating:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. . . . [W]hen a state prisoner seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Heck, 512 U.S. at 486-87; see also Hubbs v. Alamao, 360 F.Supp.2d 1073, 1080 (C.D.Cal. 2005) ("[A] civil committee . . . cannot seek to overturn his civil commitment proceedings in a civil rights action for damages and injunctive relief."). "In evaluating whether claims are barred by Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by negating 'an element of the offense of which he has been convicted.'" Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002) (quoting Heck, 512 U.S. at 487 n. 6), cert. denied, 538 U.S. 960 (2003).
Here, as related to these Defendants, Plaintiff is not negating an element of the offense. Instead, he is arguing that he was not provided proper notice of the SVPA process. This claim does not negate any element of any offense. Thus, the Court finds that Heck does not apply.
Defendants urge the Court to abstain from making a decision, and dismiss the action, based on the Colorado Doctrine. The Colorado Doctrine is used to assess whether a court with concurrent jurisdiction should abstain from ruling. The following factors are to be consider: inconvenience of the federal forum, the desirability of avoiding piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forum. Colorado River Water Conservation District v. United States, 424 U.S. 800, 818 (1976). Two additional factors to be considered are whether state or federal law controls and whether the state proceedings can adequately protect the parties' rights. Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 25-26 (1983). Defendants argue that the state action (Plaintiff's civil commitment proceeding) was started first, federal law controls many causes of action in this action and state law controls in the state action, either forum can protect the parties' rights adequately, and dismissing this action would avoid piecemeal litigation.
Defendants cite Field v. City of San Jose, 2009 WL 330923 (N.D. Cal. 2009) in support of their argument. However, the difference between this case and Field is that in Field it was clear that the plaintiff's claims ...