The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANT CATE (Docs. 19, 23, and 24).
Plaintiffs are state prisoners who are represented by counsel. Plaintiffs initiated this civil rights action against Defendants Cate, Stainer, and Bonilla pursuant to 42 U.S.C. § 1983 on September 2, 2011. (Doc. 2). On June 25, 2012, this Court issued an order granting Defendants' motion to dismiss Plaintiffs' Second Amended Complaint ("SAC"), in part and denying in part. (Doc. 23). Specifically, the Court's June 25, 2012 order granted the motion to dismiss as to Defendant Cate and denied the motion as to Defendants Stainer and Bounville. Plaintiffs were provided an opportunity to amend the complaint as to Defendant Cate. (Doc. 23).
On July 10, 2012 and again on July 11, 2012, Plaintiffs filed a Notice of Non-filing of the Third Amended Complaint. (Docs. 24 and 26). Plaintiffs notice stated that they did not possess additional facts upon which to support an amended complaint against Defendant Cate and, therefore, requested the Second Amended Complaint be deemed the operative complaint (with the exception of Defendant Cate). For the reasons set forth below, it is recommended that Defendant Cate be 2 dismissed.*fn1
Plaintiffs are state prisoners confined in the Security Housing Unit ("SHU") at the California Correctional Institution ("CCI") in Tehachapi. (Doc. 19 at 2.) Plaintiffs allege that they are being 6 deprived of the minimum amount of out of cell exercise. (Id. at ¶ 2.) Plaintiffs indicate that in the 7 four months preceding the filing of the FAC, they have received a total of 12 hours of exercise time. 8
(Id. at ¶ 6.) Plaintiffs indicate that their remaining time was spent confined in a 6 x 8 foot cell. (See 9 id. at ¶ 6.) Plaintiffs aver that the lack of out of cell exercise has had an adverse impact on their physical health and mental well-being. (Id. at ¶ 17.)
Plaintiffs' SAC names Correctional Sergeant Bounville, CCI Warden Michael Stainer, and Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation ("CDCR") in their individual capacities. (Id. at 4-5). As to Defendant Cate, Plaintiffs' SAC alleges Cate has received thousands of inmate appeals from SHU inmates at CCI regarding the lack of exercise but has failed to investigate or verify such claims. (Doc. 19 at ¶23). Plaintiffs conclude that Cate's failure to act demonstrates that Cate has established a policy of non-compliance with exercise provisions and that his actions amount to a failure to train Defendant Stainer. (Id.)
A. Federal Rules Of Civil Procedure Rule 12(B)(6)
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6); see also Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing the motion, the Court will assume the truth of all factual allegations and will construe them in the light most favorable to the nonmoving party. See Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). However, the court is not bound to accept as true a legal conclusion 2 couched as a factual allegation. "When there are well-pleaded factual allegations, a court should 3 assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." 4 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). However, the conclusions contained in the pleading 5 "are not entitled to the assumption of truth." (Id.) 6
To plead a § 1983 violation, a plaintiff must allege facts from which it may be inferred (1) he 8 was deprived of a federal right, and (2) a person who committed the alleged violation acted under 9 color of state law. West v. Atkins, 487 U.S. 42, 28 (1988); Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). In addition, a plaintiff must allege he suffered a specific injury, and show causal relationship between the defendant's conduct and the injury suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person deprives another of a federal right "if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do so that it causes the deprivation of which ...