The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (ECF Nos. 36, 40, 42) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Monte L. Haney is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on May 10, 2010. (ECF No. 1.)
On February 10, 2012, Plaintiff's complaint was screened and an order issued recommending dismissing certain claims and defendants. (ECF No. 26.) On March 27, 2012, an order issued adopting the findings and recommendations; and Plaintiff was granted thirty days in which to file an amended complaint. (ECF No. 27.) Plaintiff filed a first amended complaint on April 4, 2012; and on April 6, 2012, an order issued finding service of the complaint appropriate. (ECF No. 28, 31.) On July 3, 2012, Defendants filed a motion to dismiss for failure to state a claim and a request for judicial notice. (ECF NO. 36, 37.) Plaintiff filed an opposition on July 23, 2012; and Defendants filed a reply on August 2, 2012. (ECF Nos. 40, 42.)
II. Allegations in First Amended Complaint
Plaintiff's first amended complaint states:
On 1-23-07 [sic] Defendant M.P. Hernandez "intentionally" refused to give me a witness for a CDC Administrative 115 then falsely documented on the 115 did [sic] I did not request a witness in violation of 15 CCRS 335(e) and CA Penal Code 3118.1. As a result of the Defendants conduct my due process rights were violated because I was found guilty of a 115 without a witness present at my hearing to give a statement on my behalf. On 2-8-07 [sic] I requested again that the Defendant allow me to have a witness but the Defendant refused again. On 2-21-07 [sic] Plaintiff informed Defendant D.J. Ruiz that Defendant M.P. Hernandez refused to question my witness and previous to the 115 hearing I requested a witness attend the hearing but Defendant D.J. Ruiz found me guilty of the 115 on 2-21-07 [sic]despite the fact I informed him Defendant M.P. Hernandez refused to question my witness. (Am. Compl. 4,*fn1 ECF No. 28.)
A. Motion to Dismiss 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." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); 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. Davis v. HSBC Bank of Nevada, N.A., 691 F.3d 1152 (9th Cir. 2012); Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).
Defendants argue that Plaintiff has failed to identify a liberty interest for which the protection of the Due Process Clause is sought. (Memorandum of Points and Authorities in Support of Motion to Dismiss 7, ECF No. 36-1.) Additionally, even if a liberty interest were to exist, Plaintiff received all procedural protections required to satisfy due process. Plaintiff received written notice of the charges at least 24 hours before the hearing; the hearing officer provided written notice of the reasons for the guilty finding ; and Plaintiff indicated that he understood the charges and was ready to proceed at the hearing. (Id. at 4-5.) The right to call witnesses at a rule violation hearing is not absolute and Defendant Ruiz determined ...