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Michael Anthony Lopez, Cdcr #H-30604 v. Domino Uribe; N. Grannis; To Fed.R.Civ.P. 12(B)(6

February 21, 2012

MICHAEL ANTHONY LOPEZ, CDCR #H-30604, PLAINTIFF,
v.
DOMINO URIBE; N. GRANNIS; TO FED.R.CIV.P. 12(B)(6) M. HODGES; DENNIS BROWN; ALICIA GARCIA; L. KASTNER,
DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT [ECF No. 17]

I. Procedural History

On May 17, 2011, Michael Anthony Lopez ("Plaintiff"), a state inmate currently incarcerated at Centinela State Prison ("CEN") filed this action pursuant to 42 U.S.C. § 1983 along with another inmate. The Court severed the two actions and permitted Plaintiff Lopez to proceed in this case. While the initial Complaint remains the operating pleading, only Counts two and three remain in this action. Count one pertains to the action filed by the other plaintiff and was dismissed without prejudice to proceed in the separate action. Further, the claims against defendants Giurbino, Ayala, Narvis, and Foston were dismissed from this action because they were claims made by the other plaintiff.

On December 2, 2011, Defendants Garcia, Uribe, Kastner, Brown, Grannis and Hodges filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) [ECF No. 17]. On January 9, 2012, Plaintiff filed his Opposition [ECF No. 19].

II. Plaintiff's Allegations

Plaintiff alleges that his true name is "Michael Anthony Lopez" and claims that this is supported by the abstract of judgment issued in Orange County Superior Court following his criminal conviction. (See Compl. at 10.) On August 19, 2009, Plaintiff learned from an Investigator from the Orange County Alternate Defenders Office that his legal mail was being returned by "CEN Mailroom staff supervisor L. Kastner." (Id.) Specifically, Plaintiff was informed his mail was being "tampered with" and several pieces of legal mail from July to October 2009 had been returned to the Investigator. (Id.) Plaintiff alleges that the CEN mailroom staff never informed him of the attempts to deliver his mail. (Id.)

On August 8, 2009, Plaintiff requested a copy of a "Special Purpose Letter" from the CEN mailroom in order for him to be able to obtain a summary of his outgoing and incoming legal mail. (Id.) On September 2, 2009, Defendant Alicia Garcia, Office Service Supervisor, interviewed Plaintiff with regard to his mail. (Id.) Plaintiff was informed by Defendant Garcia that any mail addressed to "Michael Lopez" was being returned because according to the "Distributed Data Processing System" ("DDPS") Plaintiff is listed as "Fredierick Lopez," not Michael Lopez. (Id.) Plaintiff had received other legal mail addressed to Michael Lopez. (Id. at 10-11.)

Plaintiff alleges that the failure to receive all of his legal mail caused him to suffer an injury in the California Court of Appeals "concerning a new trial due to Plaintiff not having preliminary transcripts attached to each writ." (Id. at 11.) Plaintiff alleges that Defendant Garcia failed to notify him of the mail that was rejected and further she failed to "properly correct known DDPS discrepancy." (Id.) Plaintiff claims Associate Warden Dennis Brown is also liable because he failed to "properly supervise subordinates." (Id.) Plaintiff claims that Grannis and Hodges should have rectified the problem of Plaintiff's correct name as they were aware of the problem following Plaintiff's filing of administrative grievances. (Id. at 12.)

III. Defendants' Motion to Dismiss

A. Defendants' Arguments

Defendants seek dismissal pursuant to FED.R.CIV.P. 12(b)(6), claiming that: 1) Plaintiff has failed to allege facts sufficient to state a First Amendment claim; 2) Plaintiff has failed to allege facts sufficient to state a Fourteenth Amendment due process claim; and 3) Plaintiff has failed to allege personal involvement on the part of any Defendant.

B. 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 ...


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