The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANT JANDA'S MOTION TO DISMISS; (4) DISMISSING DEFENDANT AND (5) DIRECTING MARSHAL TO REATTEMPT SERVICE ON DEFENDANT SANCHEZ (ECF Nos. 18, 19)
Presently before the Court is Magistrate Judge Jan M. Adler's report and recommendation ("R&R") advising the Court to grant Defendant G.J. Janda's ("Defendant" or "Janda") motion to dismiss without prejudice and to dismiss Defendants Sanchez and John Doe pursuant to Federal Rule of Civil Procedure 4(m). (R&R, ECF No. 19) Also before the Court are Plaintiff Shauncy Bowen's ("Plaintiff" or "Bowen") objections to the R&R. (Obj., ECF No. 21)
Plaintiff, an inmate at Calipatria State Prison, alleges that on January 6, 2009, while he was being escorted in mechanical restraints to the program office, correctional officer Sanchez struck Plaintiff in the back of his head with his fist. (FAC 3, ECF No. 7) Sergeant Silva and another officer witnessed the assault, and inquired whether Plaintiff wished to press charges. (Id.) Plaintiff did want to press charges, and was thereafter escorted to the program office where a video and written statement were taken. (Id.)
Plaintiff filed his original complaint pursuant to 42 U.S.C. § 1983 on November 18, 2009. (Compl., ECF No. 1) He thereafter amended his complaint, naming an additional defendant. (FAC, ECF No. 7) The Court dismissed Plaintiff's complaint without prejudice on January 10, 2011, pursuant to Federal Rule of Civil Procedure 4(m). (Order, ECF No. 12) Subsequently, the Court granted Plaintiff's application for relief from the Court's Order dismissing the case, and directed the Clerk to issue a summons as to Plaintiff's FAC and forward to Plaintiff a blank U.S. Marshal Form 285 for each Defendant. (Order, ECF No. 14)
On May 24, 2011, a summons was returned unexecuted as to Defendant Sanchez. (ECF No. 16) Defendant Janda's waiver of service was executed on May 31, 2011. (ECF No. 17) Thereafter, Defendant Janda filed the instant motion to dismiss. (Mot. to Dismiss, ECF No. 18) Plaintiff did not file an opposition. Magistrate Judge Adler issued the R&R on August 26, 2011, and Plaintiff's objections were filed nunc pro tunc September 30, 2011. (Obj., ECF No. 21)
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, - US - , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend ...