The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel. This action proceeds on plaintiff's January 9, 2012 first amended complaint, in which plaintiff alleges he was not afforded due process when he was assigned to administrative segregation or when he was subsequently assigned to the Security Housing Unit ("SHU"), following an altercation on July 20, 2007. (Dkt. No. 5.) As set forth more fully below, the court finds that defendants' motion to dismiss should be granted in part, and denied in part.
On July 20, 2007, plaintiff was involved in an incident on the yard
State Prison, Sacramento ("CSP-SAC"). On July 25, 2007, plaintiff
received an Institutional Classification Committee ("ICC") hearing,
during which he was informed that an investigation
was being conducted into plaintiff's involvement in the July 20, 2007
altercation in which a peace officer was battered. (Dkt. No. 5 at 11
n.1.) On August 29, 2007, a rules violation report ("RVR") was issued
against plaintiff for battery on a peace officer, based on the July
20, 2007 incident. On September 5, 2007, plaintiff was served with a
copy of the RVR. (Dkt. No. 5 at
12.) On September 14, 2007, the RVR was referred to the District
Attorney's office for a determination whether criminal charges would
be brought. (Dkt. No. 5 at 12.) Plaintiff requested postponement of
the RVR hearing pending the District Attorney's decision.*fn1
(Id.) The District Attorney decided not to
On November 8, 2007, plaintiff was transferred from state custody to federal custody by the United States Marshal for a federal court case. (Dkt. No. 5 at 14.) Plaintiff returned to state custody on June 19, 2008. (Dkt. No. 23 at 25.) Thus, with the exception of the time plaintiff spent in federal custody, plaintiff was housed in administrative segregation from the July 20, 2007 incident, until May 30, 2009.
Plaintiff's disciplinary hearing was held on May 30, 2009.
III. Legal Standards - Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
In considering a Rule 12(b)(6) motion, a district court generally may not take into account material beyond the complaint. IntriPlex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). However, there are exceptions to the general rule. Under the "incorporation by reference" doctrine, we may consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration in original) (internal quotation marks omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed.2d 179 (2007) ("[C]courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.").
Dunn v. Castro, 621 F.3d 1196, 1205 n.6 (9th Cir. 2010).
Defendants contend that plaintiff received all the process he was due for both his assignment to administrative segregation, and the subsequent assignment to the SHU, and that the delay in plaintiff's hearing was a result of plaintiff's request to postpone the hearing until the District Attorney decided whether or not to criminally prosecute plaintiff. Plaintiff opposes the motion, arguing that defendants failed to provide him with due process before he was placed in administrative segregation, failed to provide him with a timely hearing on the RVR, and that plaintiff did not receive due process at the hearing he did receive prior to the SHU assignment.
The Ninth Circuit has held that Title 15, California Administrative Code, sections 3335, 3336, and 3339,*fn3 together create a constitutionally protected liberty interest in a prisoner remaining free from arbitrary administrative segregation. Toussaint v. McCarthy, 801 F.2d 1080, 1097-98 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472, 484 (1995) (prisoner's liberty interest protected by due process triggered by conditions demonstrating "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life"). The Supreme Court has stated that five days is a reasonable time for the post-placement review. See Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated in part on other grounds by Sandin, 515 U.S. at 472.
The process constitutionally due to an inmate placed in segregated housing depends on whether the placement is administrative or disciplinary. Toussaint, 801 F.2d at 1099. In the administrative context, due process requires that prison officials hold an informal non-adversarial hearing within a reasonable time after the prisoner is segregated, inform the prisoner of the reasons, and allow the prisoner to present his views. Id. at 1100. In other words, the prisoner must receive some notice of the charges against him, or notice of the factual basis leading to consideration for the confinement. Saavedra v. Scribner, 482 Fed. Appx. 268 (9th Cir. June 6, 2012) (internal quotations and citations omitted). A decision to ...