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Jerry Cobb v. Kathy Mendoza-Powers

July 24, 2012

JERRY COBB,
PLAINTIFF,
v.
KATHY MENDOZA-POWERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS R E C O M M E N D I N G G R A N T I N G DEFENDANTS' MOTION TO DISMISS (ECF No. 37) OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations on Defendants' Motion to Dismiss

I. Procedural History

Plaintiff Jerry Cobb is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On November 12, 2012, an Order issued finding service of Plaintiff's Complaint, filed March 24, 2010, appropriate. (ECF No. 12.) On November 24, 2010, Plaintiff submitted service documents and an Order issued directing the United States Marshal to serve the Complaint. (ECF No. 14.) On May 23, 2011, Defendants filed a Motion to Dismiss. (ECF No. 23.) On February 7, 2012, an Order Adopting Findings and Recommendations issued dismissing Plaintiff's Complaint, with leave to amend.*fn1 (ECF No. 32.) Plaintiff filed a First Amended Complaint on March 6, 2012. (ECF No. 33.) On March 19, 2012, Defendants Chastagner, Mendoza-Powers, and Reynolds filed a Motion to Dismiss.*fn2 (ECF No. 37.) On March 20, 2012, a Notice of Errata was filed amending the Motion to Dismiss to include Defendant Woodford. (ECF No. 38.) On April 5, 2012, the First Amended Complaint was screened and Findings and Recommendations issued recommending dismissing certain claims and defendants. (ECF No. 39.) On May 16, 2012, an Order Adopting Findings and Recommendations issued.*fn3 (ECF No. 40.) On May 16, 2012, the Court ordered Plaintiff to file an opposition or statement of non-opposition to Defendants' Motion to Dismiss. (ECF No. 41.) On July 18, 2012, Plaintiff filed a Statement of Non-opposition to Defendants' Motion to Dismiss. (ECF No. 44.)

This action is proceeding on Plaintiff's First Amended Complaint, filed March 6, 2012, against Defendants Mendoza-Powers, Chastagner, and Reynolds for violation of the Free Exercise Clause of the First Amendment for monetary damages. Since Defendants' Motion to Dismiss was filed prior to the Court screening the First Amended Complaint, arguments are included that address the claims and defendants that have been dismissed from the action. Accordingly, the Court shall only address Defendants' Motion to Dismiss for those claims and Defendants proceeding in this action.

II. Motion to Dismiss

A. Legal Standard

In considering a motion to dismiss for failure to state a claim, the court generally considers only the pleadings and must accept as true the allegations in the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir. 2002). A court may consider evidence that the complaint relies on, where the complaint refers to a document that is central to the complaint and no party questions the authenticity of the document. Marder, 450 F.3d at 448; see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Additionally, the court is to "construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hebbe, 627 F.3d at 342.

A motion to dismiss for failure to state a claim is properly granted where the complaint lacks "a cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988)). There are two requirements to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). While accepting factual allegations in the complaint as true, the court is not required to accept legal conclusions as true, and the factual allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).

B. Allegations in First Amended Complaint

On April 4, 2003, Plaintiff took a vow not to comb or shave his hair as a symbol of his relationship with God. At the time Plaintiff made this vow, the CDCR was enforcing a grooming policy providing no exemptions for prisoners with religious beliefs. The prison grooming policy was found to be unconstitutional in Warsoldier.*fn4 On November 15, 2005, Defendant Mendoza-Powers continued to enforce the policy. Defendant Mendoza-Powers authorized a lieutenant under her command to generate a memo notifying staff and inmates that the grooming policy would continue to be enforced at Avenal State Prison, where Plaintiff was incarcerated.

On December 16, 2005, Defendant Reynolds told Plaintiff to cut his hair or he would receive a disciplinary violation. Plaintiff refused to comply. On December 20, 2005, Defendant Reynolds issued Plaintiff a counseling chrono, the first step in the disciplinary process. Defendant Chastagner issued a rule violation report on December 26, 2005. On January 3, 2006, Plaintiff was found guilty of a rule violation for failing to cut his hair.

C. Defendants' Position

Defendants bring this Motion to Dismiss on the grounds that Plaintiff's claims against Defendant Mendoza-Powers fail as they are based upon respondent superior, the complaint fails to state a claim for a violation of the First Amendment, and Defendants ...


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