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David Rentz, Ii, Cdcr #J-41030 v. T. Borem

December 11, 2012

DAVID RENTZ, II, CDCR #J-41030, PLAINTIFF,
v.
T. BOREM,
DEFENDANT.



The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S SECOND AMENDED COMPLAINT PURSUANT TO MOTION TO DISMISS PLAINTIFF'S (ECF No. 32) FED.R.CIV.P. 12(b)(6)

David Rentz, II ("Plaintiff"), currently incarcerated at Calipatria State Prison ("CAL") in Calipatria, California, is proceeding in pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983.

I. Procedural History

On July 19, 2011, Plaintiff filed his original Complaint (ECF No. 1). Plaintiff was granted leave to proceed IFP and the Court directed the U.S. Marshal to effect service of process upon Defendant Borem pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(2) (ECF No. 4 at 4-5). Before Defendant Borem appeared in the action, Plaintiff filed a First Amended Complaint ("FAC") (ECF No. 8). Defendant Borem filed a Motion to Dismiss Plaintiff's FAC pursuant to FED.R.CIV.P. 12(b)(6) (ECF No. 16). On May 8, 2012, the Court granted Defendant's Motion to Dismiss and gave Plaintiff leave to file a Second Amended Complaint (ECF No. 23 at 5). After seeking extensions of time which were granted by the Court, Plaintiff filed his Second Amended Complaint ("SAC") on July 23, 2012 (ECF No. 29).

Defendant has now filed a Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) (ECF No. 32). Plaintiff has filed an Opposition in Response (ECF No. 36) to which Defendant has filed a Reply (ECF No. 37), and the matter has been submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1(d)(1).

II. Defendant's Motion to Dismiss

A. Defendant's Arguments

Defendant seeks dismissal of Plaintiff's Second Amended Complaint on the grounds that:

(1) Plaintiff has failed to state a First Amendment claim; (2) Plaintiff has failed to state an Eighth Amendment claim; and (3) Defendant is entitled to qualified immunity from liability for damages in his individual capacity. (Def.'s Memo of P&As in Supp. of Mot. to Dismiss (ECF No. 32-1) at 3-10).

B. FED.R.CIV.P. 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks omitted).

A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) .

In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Because "Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings, [courts] continue to construe pro se filings liberally when evaluating them under Iqbal." Hebbe v. ...


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