FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. Presently before the court is
defendants Fowler, Rogers, Rosario, and Rallos's ("defendants") motion
to dismiss pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)
and 12(b)(6), for failure to exhaust administrative remedies and for
failure to state a claim, respectively. Dckt. No. 37.*fn1
For the reasons stated below, the undersigned finds that
defendants' motion to dismiss must be granted in part and denied in
This action proceeds on plaintiff's complaint filed on January 5, 2010. Dckt. Nos. 1, 17. Plaintiff alleges therein that on September 9, 2009, while he was walking with his hands cuffed behind his back, defendant Rosario slammed plaintiff into a steel grill gate. Dckt. No. 1 at 3.*fn2
Plaintiff claims that he fell to the hard concrete floor, causing him further injury. Plaintiff further alleges that defendant Rosario then attempted to break plaintiff's right arm and hand, kneed him in the back and right arm, and slammed his head on the concrete floor. Id. at 3-4. Plaintiff claims that he was not resisting during the altercation. Id. at 3.
Plaintiff claims that he subsequently met with defendant Fowler and provided a written report and a recorded statement of the incident. Id. at 4. He also claims that he was placed in Administrative Segregation ("Ad Seg") because defendant Rosario had submitted a falsified rule violation report stating that plaintiff assaulted Rosario. Id. On September 30, 2009, plaintiff again met with Fowler. Id. at 5. Fowler allegedly stated that he had unlawfully altered video recorded evidence documenting plaintiff's injuries. Id.
On October 17, 2009, a disciplinary hearing was held regarding the altercation between plaintiff and Rosario. Id. at 5. Plaintiff claims that he was not permitted to call any witnesses at the hearing. Id. Plaintiff also alleges that defendant Rogers, who was conducting the disciplinary hearing, informed plaintiff that he would believe an officer's word over any inmate's word. Id. Plaintiff also claims that Rogers found him guilty of a division D offense, even though plaintiff was not charged with a division D offense. Id. As a result of being found guilty of the division D offense, a classification committee gave plaintiff a seven month term in the Security Housing Unit ("SHU"). Id. at 6.
Plaintiff further alleges that on October 12, 2009, defendant Rallos, a physician, refused to take X-rays of plaintiff's injuries. Id.
II. Rule 12(b)(6) Standards
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). The court need not accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A pro se litigant is, however, entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
Plaintiff asserts claims against defendants for violating his civil rights.*fn3 Specifically, plaintiff alleges that: 1) defendant Rogers violated his due process rights by conducting a biased disciplinary hearing; 2) defendant Rosario violated his Eighth Amendment right to be free from cruel and unusual punishment by using excessive force and violated his due process rights by submitting a false Rule Violation Report; 3) defendant Fowler violated his due process rights by altering evidence; and 4) defendant Rallos violated his Eighth Amendment rights by acting with deliberate indifference to plaintiff's serious medical needs.*fn4
Plaintiff claims that Rosario violated his civil rights by using excessive force in violation of the Eighth Amendment and denying plaintiff procedural due process as required by the Fourteenth Amendment. Defendants argue that plaintiff's claims against Rosario should be dismissed because they are barred by Edwards v. Balisok. Defendants also argue that plaintiff failed to allege facts showing that Rosario violated the Fourteenth Amendment.
Defendants contend that plaintiff's claims against Rosario are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997), because plaintiff challenges findings of a disciplinary proceeding where a loss of good-time credits was assessed.
The Supreme Court has held, where a judgment in the prisoner's favor in his § 1983 action would necessarily imply the invalidity of a deprivation of good-time credits, the plaintiff must first demonstrate that the credits deprivation has been invalidated in order to state a cognizable § 1983 claim. Edwards, 520 U.S. at 644; Heck, 512 U.S. at 483, 486-87 (setting forth this "favorable termination" rule). The Ninth Circuit Court of Appeals has clarified that application of Heck's favorable termination rule "turns solely on whether a successful § 1983 action would necessarily render invalid a conviction, sentence, or administrative sanction that affected the length of the prisoner's confinement." Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003).The Heck bar exists to preserve the rule that challenges which, if successful, would necessarily imply the invalidity of incarceration or its duration, be brought via petition for writ of habeas corpus. Muhammad v. Close, 540 U.S. 749, 751-52 & n.1 (2004).
Defendants' request for judicial notice of prison records relating to plaintiff's disciplinary proceedings and CDCR "chronological history," is granted. See Dckt. No. 37. Those records show that the disciplinary conviction resulted in the loss of 90-days of behavioral credits. Id., Ex. A. Those records also show that plaintiff is serving an indeterminate life sentence. Id., Ex. B.
As a life-term prisoner, the loss of credits will have no effect on plaintiff's maximum sentence. See Roman v. Knowles, Case No. 07-cv-1343-JLS, 2011 U.S. Dist. LEXIS 95410, at *38-40 (S.D. Cal. June 20, 2011), adopted by 2011 U.S. Dist. LEXIS 95286 (S.D. Cal. Aug 25, 2011) (finding the favorable termination rule inapplicable under such circumstances). And while the prison records indicate that the loss of credits has affected plaintiff's minimum eligible parole date (MEPD), a change in plaintiff's MEPD will not necessarily affect the length of his sentence. See Vandervall v. Feltner, Case No. CIV-S-09-1576 DAD, 2010 U.S. Dist. LEXIS 72059, at *16-18, adopted by 2010 U.S. Dist. LEXIS 88704 (E.D. Cal. Aug. 25. 2010) ("Rather, the MEPD determines when plaintiff may appear before the Board of Parole Hearings (BPH) for his first parole suitability hearing. The BPH, in turn, has the exclusive authority to grant plaintiff parole and set any actual parole release date."). Defendants drop a footnote indicating that "California state law provides a reduction in sentence based on the inmate's good-time credits." Dckt. No. 37 at 6 n. (citing Cal. Penal Code § 2933). Defendants do not articulate how or if section 2933 would apply in these circumstances to reduce plaintiff's life sentence.
Accordingly, because defendants have failed to demonstrate how the loss of credits resulting from the disciplinary conviction will have any impact on the length of plaintiff's confinement, defendants' motion to dismiss claims as barred by the favorable termination rule must be denied. See Ramirez, 334 F.3d at 858 ("[W]here . . . a successful § 1983 action would not necessarily result in an ...