The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER 1) ADOPTING REPORT AND RECOMMENDATION AND 2) GRANTING MOTION TO DISMISS (ECF. Nos. 38, 92)
On May 16, 2011, Plaintiff Jay G. Kimpel ("Kimpel"), a California State Prisoner, brought a 42 U.S.C. § 1983 action against Defendants I. Marquez ("Marquez"), D. Martinez ("Martinez"), A. Buenrostro ("Buenrostro"), Rico, and Rink (collectively, "Defendants") alleging violations of his Eighth Amendment right to be free from the use of excessive physical force. Defendants moved to dismiss the complaint on the grounds that Kimpel failed to state an Eighth Amendment claim against Marquez and Rink and that Kimpel failed to exhaust his administrative remedies. (MTD, ECF No. 38). Magistrate Judge Lewis issued a Report and Recommendation (R&R) recommending that this Court grant Defendants' motion to dismiss. (R&R, ECF No. 92).
Presently before the Court are Judge Lewis's R&R, Kimpel's objections to the R&R (Obj., ECF No. 94), and Defendants' reply to Kimpel's objections (Reply, ECF No. 96). Magistrate Judge Lewis's R&R contains a thorough and accurate review of the procedural history and facts underlying Kimpel's § 1983 action and this order incorporates by reference the facts as set forth in the R&R.
After consideration, the Court ADOPTS the R&R in its entirety and GRANTS the Defendants' motion to dismiss.
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
2. Motion to Dismiss for Failure to State a Claim
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.
Relevant here, the Court has a duty to liberally construe a pro se's pleadings, see Karim-Panahi 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 would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
3. Motion to Dismiss for Failure to Exhaust Administrative Remedies
A prisoner's failure to exhaust his available administrative remedies "should be treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion, rather than a motion for summary judgment." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding an unenumerated 12(b) motion to dismiss for lack of exhaustion, the Court may look beyond the pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119--20. If the Court concludes that the prisoner has not exhausted non-judicial remedies, the "proper remedy is dismissal of the claim without prejudice." Id. at 1120. Nevertheless, if it is clear that "allegations of other facts consistent with ...