The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO STRIKE AND/OR DISMISS BE DENIED
TWENTY-DAY OBJECTION DEADLINE
Findings and Recommendations Addressing Defendants' Motion to Strike and/or Dismiss
Plaintiff Thomas Blake Kennedy, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 6, 2009. This action is proceeding on Plaintiff's amended complaint against Defendants Cate and Gonzalez for violating Plaintiff's rights under the Eighth Amendment of the United States Constitution. Plaintiff's claim arises out of policies and practices that led to the long term denial of outdoor exercise while he was incarcerated at the California Correctional Institution (CCI), and Plaintiff is seeking damages, declaratory relief, and injunctive relief.
On August 4, 2011, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants filed a motion (1) to either dismiss or strike Plaintiff's claim for injunctive relief and (2) to strike Plaintiff's claim against them in their official capacities. After obtaining an extension of time, Plaintiff filed an opposition on October 12, 2011, and Defendants filed a reply on October 17, 2011.
Although Defendants did not specifically notice their motion pursuant to Rule 12(f), which provides that the Court may strike "an insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter," Fed. R. Civ. P. 12(f), they cited to Garlanger v. Verbeke, 223 F.Supp.2d 596, 609 (D.N.J. 2002), in which the district court, in relevant part, ruled on a Rule 12(f) motion. To the extent that Defendants' motion is treated as brought in part under Rule 12(f), the Court recommends that it be denied.
The Ninth Circuit has held that Rule 12(f) does not authorize courts to strike claims for damages on the ground that they are precluded as a matter of law. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). While Defendants are seeking to strike a claim for injunctive relief and official capacity claims rather than a damages claim, there is no distinction to be made. Because the claims at issue here are not insufficient defenses, redundant, immaterial, impertinent, or scandalous, they are not subject to a Rule 12(f) motion to strike. Whittlestone, 618 F.3d at 973-75.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, the Court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); ...