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Genghis Khan Ali Stevenson, Cdcr #P-46050 v. Ryan Thomas Harmon; John Doe

June 8, 2012


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Defendant Ryan Thomas Harmon's ("Defendant Harmon") Motion to Dismiss Plaintiff's Second Amended Complaint. (MTD, ECF No. 14) Also before the Court is Plaintiff Genghis Khan Ali Stevenson's ("Plaintiff") opposition, (Resp. in Opp'n, ECF No. 15), and Defendant Harmon's reply, (Reply in Supp., ECF No. 16). The Court has determined that Defendant Harmon's motion is suitable for disposition on the papers without oral argument and that no Report and Recommendation from Magistrate Judge Jan M. Adler is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). Having considered the parties' arguments and the law, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion.


1. Procedural History

Plaintiff is currently incarcerated at Kern Valley State Prison in Delano, California, and is proceeding pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983. On December 23, 2010, Plaintiff filed his Complaint, naming Defendants Harmon and John Doe. (Compl., ECF No. 1) On February 23, 2011, the Court granted Plaintiff's Motion to Proceed IFP, denied Plaintiff's Motion for Appointment of Counsel, and dismissed Plaintiff's Complaint for seeking monetary damages against immune defendants. (Order, Feb. 23, 2011, at 6, ECF No. 4) Plaintiff was granted leave to file an Amended Complaint, which he did on March 16, 2011. (Am. Compl., ECF No. 5) Once again, the Court dismissed Plaintiff's Amended Complaint and permitted Plaintiff leave to file a Second Amended Complaint ("SAC") in order to correct the deficiencies of pleading identified by the Court. (Order, May 24, 2011, at 7, ECF No. 7) Plaintiff filed his SAC on August 2, 2011. (SAC, ECF No. 9) The Court directed the U.S. Marshal's Service to effect service of the SAC on the named Defendants. (Order, Nov. 2, 2011, ECF No. 10) And, on January 20, 2012, Defendant Harmon filed the instant Motion to Dismiss Plaintiff's SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (MTD, ECF No. 14)

2. Factual Background*fn1

On June 11, 2006, Plaintiff was housed at Calipatria State Prison in the Administrative Segregation Unit ("Ad-Seg"). Plaintiff alleges that he was physically assaulted by Defendant Harmon,*fn2 and that he verbally informed Defendant Harmon's supervisor, Sergeant Velasco, that this use of force had occurred. Sergeant Velasco then escorted Plaintiff to the Ad-Seg medical facility, and Plaintiff told Sergeant Velasco that he feared for his life "and was not comfortable around [Defendant Harmon] or the other officers."

As Sergeant Velasco and Plaintiff were leaving the medical facility, Plaintiff informed Sergeant Velasco that he was bleeding and that he needed to seek additional medical attention and to report the injury. Plaintiff claims Defendant Harmon overheard this conversation and that Defendant Harmon "immediately took action and tackle[d] Plaintiff to the ground." Following this incident, Plaintiff alleges Defendant Harmon "falsely accused" Plaintiff of assault and Defendant Harmon submitted a "fabricated report (evidence) for criminal prosecution."*fn3

Based on Defendant Harmon's allegedly false report, Plaintiff asserts that he received a Rules Violation Report in June of 2006, and that on September 26, 2008, he was indicted by the Imperial County Grand Jury for "battery on a non-confined person by prisoner." Plaintiff alleges that it later became "evident that exculpatory evidence was withheld during the grand jury hearing," and as a result, the criminal charges were dropped on February 25, 2009.


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, 556 U.S. 662, 678 (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, 556 U.S. at 678 (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 679 (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) (internal quotations omitted).

Relevant here, the Court has a duty to liberally construe a pro se's pleadings, see KarimPanahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, a court may not "supply essential elements of the claim that was not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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 ...

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